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LOOKING FOR POWER IN PUBLIC LAW
Daryl J. Levinson †
Introduction
Constitutionalism is the project of creating, allocating, and constraining state power. Doing any of these things successfully requires
constitutional designers and interpreters to determine how power
should best be distributed among political actors and institutions, how
much power these actors and institutions in fact possess, and how
power shifts in response to legal and political arrangements and interventions. Yet, for all the attention issues relating to power have received in U.S. constitutional law, courts and theorists seem surprisingly
at sea about basic questions of where power is located in the American
political system, how it should be distributed or redistributed, and
even what “power” means or which kinds of power should matter for
different purposes.
To begin, the focus of structural constitutional law — encompassing separation of powers, presidential power, federalism, and the administrative state — has been on how power is distributed between
and among government institutions. Constitutional law polices the
power of the Presidency, Congress, administrative agencies, and the
national government as a whole (vis-à-vis the states) with the aim of
preventing these institutional actors from “aggrandizing” themselves at
the expense of their “rivals,” or “concentrating” too much power and
thereby upsetting the constitutional “balance” or “equilibrium.” From
the Founding to the present, the central organizing principle of the
structural constitution has been that power must be divided, diffused,
or balanced to prevent, as Madison put it, in language that has become
a maxim of structural constitutional law, the “accumulation of all powers . . . in the same hands,” which “may justly be pronounced the very
definition of tyranny.” 1
Managing the structural constitution in this way depends on a clear
understanding of where power in government is located and how it
shifts in response to legal and political interventions or changing cir–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
†
1
David Boies Professor of Law, New York University School of Law.
THE FEDERALIST NO. 47, at 298 (James Madison) (Clinton Rossiter ed.,
2003); see also MARTIN H. REDISH, THE CONSTITUTION AS POLITICAL STRUCTURE 106
passim (1995) (emphasizing “the Framers’ virtual obsession with the concentration of power” and
embracing that as the core value of the structural constitution).
1
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cumstances. Yet that understanding has been conspicuously elusive.
Consider debates about presidential power. Many see the President as
increasingly “imperial,” 2 helming “the most dangerous branch,” 3 unimpeded by the separation of powers, 4 and even posing an existential
threat to constitutional democracy. 5 Others see the presidency not as
imperial but “imperiled,” 6 “manifestly underpowered,” 7 “enervated
[and] splintered,” 8 subservient to “boundless . . . Congressional power,” 9 and indeed so “constitutional[ly] and practical[ly] weak[]” as to
pose — once again — “a threat to American democracy.” 10 At the
same time, still others perceive the President to be tightly constrained
by “plebiscitary” responsiveness to public opinion and popular demands, 11 or by a “synopticon” of legal and political “watchers” who
monitor and check his every action.12 It is unclear, however, whether
these constraints are supposed to alleviate “tyrannophobic” fears of unchecked presidential power 13 or “strengthen” a “bigger and bigger
presidency” 14 — or, somehow, both.
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2
See, e.g., BRUCE ACKERMAN, THE DECLINE AND FALL OF THE
AMERICAN REPUBLIC 188 (2010) (“Almost forty years ago, Arthur Schlesinger Jr. sounded the
alarm in The Imperial Presidency (1973). Yet the presidency has become far more dangerous today.”); CHARLIE SAVAGE, TAKEOVER: THE RETURN OF THE IMPERIAL PRESIDENCY AND
THE SUBVERSION OF AMERICAN DEMOCRACY (2007).
3
Martin S. Flaherty, The Most Dangerous Branch, 105 YALE L.J. 1725, 1731
(1996); see also William P. Marshall, Warning!: Self-Help and the Presidency, 124 YALE L.J. F. 95,
98 (2014) (“The modern presidency has . . . ascended to the role of the most dangerous branch.”).
4
See, e.g., ERIC A. POSNER & ADRIAN VERMEULE, THE EXECUTIVE
UNBOUND 4 (2010) (arguing that “[w]e live in a regime of executive-centered government, in an
age after the separation of powers”).
5
See ACKERMAN, THE DECLINE AND FALL OF THE AMERICAN
REPUBLIC, supra note 2, at 4, 188 (describing the presidency as a “serious threat to our constitutional tradition” and to “constitutional democracy”).
6
See ARTHUR M. SCHLESINGER, JR., THE IMPERIAL PRESIDENCY 425
(2004) (quoting Gerald R. Ford and Richard Nixon, Two Ex-Presidents Assess the Job, TIME,
Nov. 10, 1980, at 30) (statement of Gerald Ford).
7
WILLIAM G. HOWELL & TERRY M. MOE, RELIC: HOW OUR
CONSTITUTION UNDERMINES EFFECTIVE GOVERNMENT AND WHY WE NEED A MORE
POWERFUL PRESIDENCY 172 (2016).
8
Saikrishna Bangalore Prakash, Imperial and Imperiled: The Curious State of
the Executive, 50 WM. & MARY L. REV. 1021, 1029 (2008) (describing the President in these terms
when it comes to matters of law execution).
9
JACK GOLDSMITH, THE TERROR PRESIDENCY 87 (2007) (quoting S. Rep.
No. 100-216, at 457 (1989) (Min. Rep.)) (reflecting the views of certain minority members, including then-Representative Richard Cheney).
10
Steven G. Calabresi & James Lindgren, The President: Lightening Rod or
King?, 115 YALE L.J. 2611, 2612 (2006).
11
THEODORE J. LOWI, THE PERSONAL PRESIDENT xi (1985); see also
Elena Kagan, Presidential Administration, 114 HARV. L. REV. 2245, 2335 (2001); Posner &
Vermeule, supra note 4, at 12–13.
12
JACK GOLDSMITH, POWER AND CONSTRAINT 207–11 (2012).
13
See Posner & Vermeule, supra note 4, at 176–77.
14
See GOLDSMITH, supra note 12, at xv.
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Similar disagreements or confusions abound in other areas of structural constitutional law. In separation of powers cases, the Supreme
Court has constructed a jurisprudence that “focuses on the danger of
one branch’s aggrandizing its power at the expense of another
branch,” 15 and of Congress in particular doing so. 16 Yet the Court has
also taken notice of the fact that the post-New Deal “growth of the
Executive Branch, which now wields vast power and touches almost
every aspect of daily life,” 17 is a product of Congress’s apparent propensity to “yield up its own powers” by delegating policymaking authority to the executive — giving rise to competing constitutional conIn the
cerns about Congress’s “abdication of responsibility.” 18
“standard view” of American federalism, state and local power has
been inexorably subsumed by an increasingly dominant national government. 19 That view may or may not be compatible with an emerging school of thought emphasizing the power states wield in their role
as agents of the national government — the “power of the servant,” as
opposed to the “power of the sovereign.” 20 Longstanding fears of
“government by judiciary” have been based on the belief “that much of
the task of governance and policymaking has been . . . commandeered
by an unelected federal judiciary, in particular the Supreme Court,” 21
an institution that has seized for itself “super-legislative [] power.” 22
This is the same Supreme Court that has long been viewed as the
“least dangerous branch,” 23 subservient to the political branches and
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15
Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 535
(2010) (Breyer, J., dissenting) (emphasis omitted) (quoting Freytag v. Comm’r, 501 U.S. 868, 878
(1991)).
16
Id.
17
Id. at 499.
18
See, e.g., N.L.R.B. v. Noel Canning, 134 S. Ct. 2550, 2594 (2014) (Scalia, J.,
concurring) (“[O]ne Congress cannot yield up its own powers, much less those of other Congresses
to follow. Abdication of responsibility is not part of the constitutional design.”) (quoting Clinton
v. New York, 524 U.S. 417, 452 (1998) (Kennedy, J., concurring)(citations omitted)).
19
William N. Eskridge, Jr. & John Ferejohn, The Elastic Commerce Clause: A
Political Theory of American Federalism, 47 VAND. L. REV. 1355, 1356 (1994).
20
See Heather K. Gerken, Federalism as the New Nationalism: An Overview,
123 YALE L.J. 1889, 1913 (2014); Heather K. Gerken, Foreword: Federalism All the Way Down,
124 HARV. L. REV. 4, 33 (2010) [hereinafter Gerken, Foreword].
21
See Frederick Schauer, Foreword: The Court’s Agenda — and the Nation’s,
120 HARV. L. REV. 4, 7 (2006); see also GERALD N. ROSENBERG, THE HOLLOW HOPE: CAN
COURTS BRING ABOUT SOCIAL CHANGE? 2 (1991) (presenting the view that the Court is
“powerful, vigorous, and potent” in governing society).
22
Obergefell v. Hodges, 135 S. Ct. 2584, 2629 (2015) (Scalia, J., dissenting); see
also LARRY D. KRAMER, THE PEOPLE THEMSELVES 249 (2004) (observing that the Court has
“made its grab for power” by asserting judicial supremacy). But cf. Obergefell, 135 S. Ct. at 2631
(Scalia, J., dissenting) (warning of the Court’s “impotence” if it loses political backing).
23
See ALEXANDER BICKEL, THE LEAST DANGEROUS BRANCH (1962); see
also THE FEDERALIST NO. 78, at 464 (Alexander Hamilton) (Clinton Rossiter ed., 2003).
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popular majorities, 24 lacking effective power to effectuate political or
social change, 25 and playing at best a marginal role in national policymaking. 26 These and many other conflicting claims and observations about power proliferate, but it is unclear what, if anything,
courts and commentators are really disagreeing about, or how divergent opinions might be adjudicated or reconciled.
A further, and deeper, ambiguity lies in how the power of government institutions at the level of constitutional structure is supposed to
relate to the power of “democratic” level political actors such as voters,
interest groups, political parties, and cohesive social groups. We are
told by Madison that the accumulation of too much power in the same
hands is tantamount to tyranny — but in whose hands? It is one thing
to ensure that power is divided between the President and Congress.
It is quite another to ensure that power is divided between Democrats
and Republicans, the rich and the poor, or racial or religious majorities
and minorities, or to prevent one such group from tyrannizing the other. At the institutional level, Madison promised that the constitutional
design of government would allow “ambition” to “counteract
[a]mbition,” resulting in a balanced equilibrium in which no branch
could accumulate tyrannical power. 27 At the level of interests and social groups, Madison suggested an analogous mechanism for balancing
power: shifting authority to the national government of an extended
republic would create pluralist political competition among many different factions, preventing any one from becoming tyrannically dominant. 28 How these two sets of ideas about balancing power — Federalist 51 on the power of institutions, Federalist 10 on the power of
interests — were supposed to relate to one another was left unexplained.
Contemporary constitutional law has perpetuated the same divide.
The law and theory of constitutional structure remains fixated on the
distribution of power among government institutions, maintaining “a
deep and enduring commitment to separating, checking, and balancing
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24
See BARRY FRIEDMAN, THE WILL OF THE PEOPLE (2009); Robert A.
Dahl, Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker, 6 J.
PUB. L. 279, 285 (1957).
25
See ROSENBERG, supra note 21, at 3.
26
See Schauer, supra note 21, at 11; see also MICHAEL J. KLARMAN, FROM
JIM CROW TO CIVIL RIGHTS 7 (2004) (arguing for a “middle ground” view of the influence and
efficacy of Supreme Court decisions).
27
THE FEDERALIST NO. 51, at 319 (James Madison) (Clinton Rossiter ed.,
2003).
28
THE FEDERALIST NO. 10, at 75–79 (James Madison) (Clinton Rossiter ed.,
2003); see also THE FEDERALIST NO. 51, at 319–20 (James Madison) (Clinton Rossiter ed.,
2003).
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state power in whatever form that power happens to take.” 29 Yet beyond ritualistic citation of the Madisonian maxim about the accumulation of power and tyranny, courts and scholars seldom pause to ask or
explain what purpose the (re)distribution of power is supposed to serve
or why institutionally concentrated power is so dangerous. 30 Whatever the answer to that question, it apparently has nothing to do with the
kind of factional tyranny Madison was worried about in Federalist 10,
as the power of interests and social groups is seldom any part of structural constitutional analysis. Concerns about the distribution of democratic level power, to the limited extent they register at all in constitutional law, have been relegated to and scattered among a number of
different areas of doctrine and theory. For example, the constitutional
and statutory “law of democracy” allocates and to some extent equalizes electoral power with an eye toward ensuring that at least some
types of groups — political parties, electoral majorities, and racial minorities — receive their fair share. And in the domain of constitutional
rights, Carolene Products theory counsels that groups without adequate political power be granted special protection against discrimination and disadvantage. 31 Political process theory and voting rights jurisprudence are typically viewed as their own enterprises, disconnected
from the separation of powers, federalism, or the overarching structural goal of diffusing and balancing power.
That disconnect becomes strikingly evident in how constitutional
law addresses — or ignores — some of the most glaring power imbalances in American society. In both its law of democracy and equal
protection cases, for instance, the Supreme Court has purported to care
about equalizing the political power of citizens or protecting “politically powerless” groups against discrimination. Yet evidence that some
groups in society seem to have little or no political influence is viewed
as beside the point of constitutional analysis. In light of the much–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
29
Jon D. Michaels, An Enduring, Evolving Separation of Powers, 115 COLUM.
L. REV. 515, 517 (2015); see also Daryl J. Levinson & Richard H. Pildes, Separation of Parties,
Not Powers, 119 HARV. L. REV. 2312, 2348 (2006) (embracing “the dominant perspective of constitutional law and theory, taking for granted that some substantial measure of intragovernmental
competition . . . and checks and balances is desirable”).
30
See M. Elizabeth Magill, Beyond Powers and Branches in Separation of
Powers Law, 150 U. PA. L. REV. 603, 629 (2001) (noting with puzzlement the lack of attention in
constitutional law to the question of why we should care about the balance of power among the
branches); Adam B. Cox & Cristina M. Rodriguez, The President and Immigration Law Redux,
125 YALE L.J. 104, 165–66 (2015) (expressing similar puzzlement at the lack of any concrete analysis of what the separation of powers is supposed to be accomplishing by dispersing power among
the branches); JEREMY WALDRON, POLITICAL POLITICAL THEORY 55–62 (2016) (lamenting
the lack of any explanation for why the institutional concentration of power should be viewed as
inherently tyrannical in Madison, Montesquieu, or other canonical sources).
31
See United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938); JOHN
HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW (1980).
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cited Madisonian maxim, one might think that the increasing concentration of economic and political power in the hands of what many
now describe as an “oligarchy” or a “moneyed aristocracy” in recent
decades would be a constitutional problem of some urgency. 32 Yet it is
not clear how, if at all, constitutional law might speak to this kind of
power imbalance. 33 The apparent facts that “government policy bears
absolutely no relationship to the degree of support or opposition
among the poor” 34 and that “the preferences of the vast majority of
Americans . . . have essentially no impact on which policies government does or doesn’t adopt” have not been understood to raise voting
rights or equal protection problems. 35 In constitutional law and theory
as it currently stands, even the most extreme claim that concentrated
wealth has so completely captured control of government that America
is no longer a “republic” somehow passes the Madisonian maxim in the
night. 36
This Foreword attempts to make better sense of how power is, and
should be, understood, located, and distributed in public law. More
specifically, the Foreword argues that constitutional law and theory
have been lookng for power in the wrong places. At one level, this is
because assessing the power of government institutions for purposes of
structural constitutional analysis is a much more complex and challenging enterprise than courts and commentators seems to recognize.
More fundamentally, the ultimate holders of power in American democracy are not government institutions like Congress and the President but democratic-level interests. Because constitutional analysis
seldom looks beyond the (super-)structural level institutions, descriptive accounts of the location of power and normative commitments to
diffusing and balancing power are both critically misplaced.
The project starts with the meaning of “power.” That term is used
so promiscuously in constitutional and political discourse that it might
seem hopeless to insist on a single definition. But, in fact, there is a
simple and intuitive understanding of power that captures most of
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32
See Joseph Fishkin & William E. Forbath, The Anti-Oligarchy Constitution,
94 B.U. L. REV. 669, 671–72 (2014) (arguing that the concentration of economic and political power was once and should again be understood as a constitutional problem, while recognizing that
this understanding has gone missing from current constitutional law).
33
For innovative scholarly efforts to identify resources in constitutional law
and theory that might be brought to bear, see generally id.; Kate Andrias, Separations of Wealth:
Inequality and the Erosion of Checks and Balances, 18 U. PA. J. CONST. L. 419 (2015); Ganesh
Sitaraman, The Puzzling Absence of Economic Power in Constitutional Theory, 101 CORNELL L.
REV. (forthcoming 2016).
34
MARTIN GILENS, AFFLUENCE AND INFLUENCE: ECONOMIC
INEQUALITY AND POLITICAL POWER IN AMERICA 81 (2012).
35
Id. at 1.
36
For a version of the claim that the corrupting influence of wealth has undermined the American republic, see LAWRENCE LESSIG, REPUBLIC, LOST (2011).
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what concerns courts and theorists in the constitutional domain. For
most (though not all) purposes, “power” in public law should be understood to refer to the ability of political actors to control the outcomes
of contested decisionmaking processes and secure their preferred policies. 37 When we talk about power in political life and in constitutional
law, this is the kind of power we are typically talking about: the ability
to affect substantive policy outcomes by influencing what the government will or will not do. 38 Asking who has power in this sense is
equivalent to asking, in Robert Dahl’s famous formulation, “Who
[g]overns?” 39
Having established that conceptual focus, the Foreword continues
as three Parts. Part I examines how the “Who governs?” question has
been answered at the level of constitutional structure, where it has
been directed toward government institutions — Congress, the President, administrative agencies, and the like. Courts and theorists have
invested a great deal of effort in attempting to identify where, at the
institutional level, power is located and relocated. Unfortunately, as
the examples above illustrate, these efforts have been beset by confusion about how to identify and accurately map power. Focusing on the
straightforward question of who decides policy outcomes, Part I aims
to clarify where there is genuine disagreement and clear a pathway
through a minefield of common misconceptions about the location and
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37
“Control” need not be complete; it can be shared among multiple actors.
When this is the case, “influence” may be a better term.
38
This understanding of power coheres with the most influential definitions in
the social sciences. The ability of political actors to control governance outcomes and make others do what they want is one institutional manifestation of the “intuitive idea of power” influentially encapsulated by political scientist Robert Dahl: “A has power over B to the extent that he
can get B to do something that B would not otherwise do.” Robert A. Dahl, The Concept of Power, 2 BEHAVIORAL SCI. 201, 202–03 (1957); see also 1 MAX WEBER, ECONOMY AND SOCIETY
53 (Guenther Roth & Claus Wittich eds., 1978) (defining power as “the probability that one actor
within a social relationship will be in a position to carry out his own will despite resistance”). The
focus of attention here, as in Dahl’s and Weber’s work, is on power exercised through politics and
government, as opposed to other social relations and processes. A broader view of power, beyond
the scope of this project, would encompass other spheres of society or modes of social interaction.
See, e.g., Michel Foucault, The Subject and Power, in MICHEL FOUCAULT: BEYOND
STRUCTURALISM AND HERMENEUTICS (Hubert L. Dreyfus & Paul Rabinow eds., 2d ed. 1983)
(conceptualizing power through “governance” as a pervasive feature of social life not limited to
the state).
A follow-on literature in the social sciences expands upon Dahl’s definition of power. See
Peter Bachrach & Morton S. Baratz, Two Faces of Power, 56 AM. POL. SCI. REV. 947 (1962)
(identifying a second “face of power,” beyond the ability of political actors to enact and veto policy, in controlling the policy agenda and preventing some possibilities from ever being considered);
STEVEN LUKES, POWER: A RADICAL VIEW (1974) (identifying a third “face” in the ability of A
to manipulate B to want or agree to a policy that does not serve his objective interests). All three
faces of power could be encompassed by the working definition introduced in the text.
39
ROBERT A. DAHL, WHO GOVERNS?: DEMOCRACY AND POWER IN AN
AMERICAN CITY (David Horne ed., 1961).
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dynamics of power in the structure of government. In so doing, the
discussion casts considerable doubt on the veracity of many conventional understandings of who is wielding or accumulating power in
government and, by implication, on the ability of courts and other
armchair observers to make such judgments with any reliability.
More fundamentally, if the question of “Who governs?” is understood to mean who has power over policy outcomes, answers at the
level of Congress or the President will only scratch the surface. Again,
the ultimate power holders in American democracy are the coalitions
of policy-seeking political actors — comprising officials, voters, parties,
politicians, interest groups, and other democratic-level actors — that
compete for control of these government institutions and direct their
decisionmaking. As Part II elaborates, parsing power requires “passing it through” government institutions to the underlying democratic
interests. Because structural constitutional analysis seldom takes this
second step, its analysis of power is not only dubious in accuracy but
also superstructural in import. When the analysis is fully carried
through, it reveals that the distribution of power at the structural level
seldom bears any systematic relation to the distribution of power at
the level of interests. That disconnect raises questions about constitutional law’s preoccupation with balancing or diffusing power at the
level of branches and units of government.
The disconnect between the power of institutions and the power of
interests also highlights constitutional structure’s neglect of the latter.
Part III goes on to suggest that concerns about diffusing and equalizing power might be better directed toward the democratic rather than
the structural level. While constitutional structure is at best a blunt
instrument for distributing power among political interests and social
groups, as Part III describes, other areas of constitutional and public
law have more directly, albeit sporadically, taken up that task. In addition to the law of democracy and the Carolene Products approach to
rights, judicial interventions and institutional design strategies to prevent — or, in some cases, to engineer — interest group “capture” of the
administrative process are another mechanism through which public
law seeks to redistribute and balance power over government
decisionmaking. In addition, thinking more expansively about the
sources of political power, any number of regulatory regimes that affect the distribution of money, mobilization, and other resources that
can be leveraged into political influence might be seen in the same
light. Part III discusses some of the possibilities and limitations of these different areas of public law in the hope of showing how they might
be constructively viewed in a common frame, together with constitutional structure, as part of a broader jurisprudential agenda of distributing, diffusing, and balancing power.
In case it does not go without saying, this project bears no special
relationship to the Supreme Court’s most recent Term. But the 2015
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Term did contribute at least its fair share to constitutional discussions
of, and confusions about, power. The Court issued a pair of terse but
highly consequential decisions about power at the level of constitutional structure, imposing limits on executive “power grabs.” 40 The
decision to block the Obama Administration’s Clean Power Plan 41 cast
doubt on the viability of the Paris Agreement and also on the President’s power to act unilaterally and efficaciously on both the domestic
and international fronts. The Court’s deadlock on the legality of the
Administration’s immigration reform plan 42 dealt a further blow to executive power and, more broadly, to the capacity of the national government to address major social problems under conditions of partisan
gridlock — a different kind of power left diminished.
The Court’s deadlock in that case and others this Term is a reminder that the Court itself has been a conversation piece for power in
the structural constitution. Another manifestation of partisan gridlock,
the Senate’s unwillingness to act on the President’s nomination of a
Justice to fill the vacancy left by Justice Scalia, resulted in a series of
4-4 stalemates, 43 along with other cases in which the Justices reached
agreement only by way of minimalist compromises. 44 Less capable of
deciding significant policy questions, a “less than robust” Court has
been “diminished” — or, we might say, disempowered. 45
The short-staffed Court did manage to reach unanimity in two other major cases dealing with the power of voters and constituents, as
opposed to government institutions. In Evenwel v. Abbott, 46 the Court
rejected an attempt to reinterpret “one-person, one-vote” to require
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40
Application of Utility and Allied Parties for Immediate Stay of Final Agency
Action Pending Appellate Review at 21, Basin Elec. Power Coop. v. EPA, 136 S. Ct. 998 (2016)
(No. 15A776).
41
Basin Elec. Power Coop. v. EPA, 136 S. Ct. 998 (2016) (mem.).
42
United States v. Texas, 136 S. Ct. 2271 (2016) (per curiam).
43
See id.; see also Dollar Gen. Corp. v. Miss. Band of Choctaw Indians, 136 S.
Ct. 2159 (2016); Friedrichs v. Cal. Teachers Ass’n, 136 S. Ct. 1083 (2016); Hawkins v. Cmty. Bank
of Raymore, 136 S. Ct. 1072 (2016).
44
See, e.g., Zubik v. Burwell, 136 S. Ct. 1557, 1560 (2016) (remanding for consideration of a compromise solution that would provide insurance coverage for contraceptives to
employees of religious organizations without requiring the organizations to take actions that
would make them complicit, in violation of their religious beliefs).
45
Adam Liptak, A Supreme Court Not So Much Deadlocked as Diminished,
N.Y. TIMES, May 17, 2016; Linda Greenhouse, The Supreme Court’s Post-Scalia Term, N.Y.
TIMES, June 23, 2016 (commenting on the Court’s “less than robust” performance owing to a lack
of “blockbuster” decisions).
The future of the Court now rests on a presidential election campaign that itself has focused
attention on issues of structural power, provoking unusual alarm in some quarters about how the
imperial power of the presidency might be put to use. See, e.g., Conor Friedersdorf, End the Imperial Presidency Before It’s Too Late, THE ATLANTIC (May 23, 2016); Eric Posner, And if Elected: What President Trump Could or Couldn’t Do, N.Y. TIMES (June 3, 2016); Marc Fisher, Donald Trump and the Expanding Power of the Presidency, WASH. POST (July 30, 2016).
46
136 S. Ct. 1120 (2016).
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that election districts be drawn with equal numbers of eligible voters,
as opposed to the standard practice of equalizing total population.47
Justice Alito’s concurring opinion called attention to the fact that
“fight[s] over apportionment” have always been about “naked power,” 48 and that this case was no exception. 49 The transparent political
stakes of counting only eligible voters would be to suppress the voting
power of urban areas with large populations of non-citizens and hence
to shift power from Democrats to Republicans. 50 In McDonnell v.
United States, 51 the Court overturned the corruption conviction of the
former governor of Virginia, who had accepted gifts from a business
owner in exchange for political favors. 52 The broader question implicated by the case, signaled by the defendant’s reliance on Citizens
United,53 is what kind of government influence wealthy individuals
and groups will, or must, be allowed to buy, and what uses of public
power for private ends will be considered “corrupt.” 54
And then there were a number of other cases that might not seem
to have anything to do with political or governmental power, but — as
this Foreword will suggest — should be understood as of a piece. 55 In
Friedrichs v. California Teachers Ass’n, 56 the Court came within a vote
of doing away with mandatory representation fees and thereby decimating public sector unions. 57 Given the role that unions have played
in the political mobilization of workers and in making government responsive to the preferences of the poor and middle class, the consequence of that decision would have been not just greater inequality of
economic power but also of political power.58 The two major constitu–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
47
48
49
50
Id. at 1126–27.
Id. at 1146 (Alito, J., concurring).
See id. at 1149.
See Adam Liptak, Supreme Court Rejects Challenge on “One Person One
Vote,” N.Y. TIMES (Apr. 4, 2016), http://www.nytimes.com/2016/04/05/us/politics/supreme-courtone-person-one-vote.html (“Had the justices required that only eligible voters be counted, the ruling would have shifted political power from cities to rural areas, a move that would have benefited Republicans.”).
51
McDonnell v. United States, 136 S. Ct. 2355 (2016).
52
Id. at 2375.
53
Brief for the Petitioner at 25, McDonnell v. United States, 136 S. Ct. 2355
(2016) (No. 15–474) (citing Citizens United v. FEC, 558 U.S. 310 (2010)).
54
See generally ZEPHYR TEACHOUT, CORRUPTION IN AMERICA: FROM
BENJAMIN FRANKLIN’S SNUFF BOX TO CITIZENS UNITED (2014).
55
See infra notes 454–456 and accompanying text.
56
136 S. Ct. 1083 (2016) (per curiam).
57
Id.
58
See infra notes 560–566 and accompanying text. Such a decision also would
have shifted power in favor of Republicans over Democrats. See Garrett Epps, The End of Public-Employee
Unions?,
THE
ATLANTIC,
Feb.
20,
2015,
http://www.theatlantic.com/politics/archive/2015/02/the-end-of-public-employee-unions/385690/
(noting that the issue in Friedrichs “has an overwhelmingly partisan valence,” given that “publicemployee unions are part of the base of the Democratic Party”).
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tional rights cases from Texas, Whole Women’s Health v. Hellerstedt, 59
striking down parts of the state’s restrictive abortion law, and Fisher
v. University of Texas, 60 upholding its race-conscious college admissions program, are also cases about political power. Judicial intervention on behalf of the socioeconomic opportunity and against the subordination of women and racial minorities might be understood to
compensate for a lack of political power on the Carolene Products
model while at the same time contributing to the empowerment of these groups.
These half dozen cases would conventionally be viewed as raising
very different kinds of constitutional concerns and assigned to separate
categories of structure, democracy, and rights. The ambition of the
pages that follow is to show how those categories and the apparently
disparate array of legal and political controversies they contain might
be integrated into a more cohesive and normatively compelling vision
of power in public law.
I. Power in Government
“That is what this suit is about. Power. The allocation of power
among Congress, the President, and the courts in such fashion as to
preserve the equilibrium the Constitution sought to establish . . . .” 61
Justice Scalia’s trenchant description of the stakes of the independent
counsel case might be equally well applied to any issue of structural
constitutional law. Thus, in separation of powers cases, as Justice
Scalia suggests, the issue is typically how institutional rearrangements
affect the relative power of the branches in controlling the decisions of
the national government. Does the legislative veto or some limitation
on the President’s authority to remove executive branch officials impermissibly diminish the President’s power over the direction of executive branch decisionmaking, shifting some measure of control to Congress or unelected bureaucrats? 62 Other separation of powers cases
assess claims of presidential power — for example to initiate armed
conflicts or detain suspected terrorists 63 — and raise questions about
what kinds of decisions the President can make unilaterally, when
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
59
60
61
62
136 S. Ct. 2292 (2016).
136 S. Ct. 2198 (2016).
Morrison v. Olson, 487 U.S. 654, 699 (1988) (Scalia, J., dissenting).
See, e.g., id. at 696–97 (majority opinion) (holding that the Independent
Counsel Act is constitutional and does not increase judicial and legislative power at the expense of
the executive branch); Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 492
(2010) (holding that dual for-cause removal limitations contravene the separation of powers); Immigration & Naturalization Serv. v. Chadha, 462 U.S. 919, 959 (1983) (holding a statute’s legislative veto provision unconstitutional).
63
See, e.g., Hamdi v. Rumsfeld, 542 U.S. 507, 533 (2004) (holding that an
American citizen-detainee can challenge his designation as an enemy combatant under the Due
Process Clause); Hamdan v. Rumsfeld, 548 U.S. 557, 635 (2006) (holding that President’s attempt
to use a military commission to criminally try a detainee is illegal).
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Congress or the judiciary must play a role in making those decisions,
and what happens when the relevant institutional actors disagree. In
federalism cases, similarly, the fighting issue is typically how much
policymaking turf the national government will be permitted to control
and how much will be left for state governments. For example, does
the individual mandate of the Affordable Care Act go beyond the
bounds of constitutional federalism by opening up a “vast domain” of
federal policymaking power at the expense of the states? 64
Needless to say, there is a great deal of disagreement about how
these and similar constitutional questions should be decided and a
great deal of complexity and variability in how they, in fact, have been
decided by courts and other constitutional interpreters. As in most areas of constitutional law, courts and theorists disagree about the right
approach to constitutional interpretation, the relevance and weight of
different sources, and the meaning of the relevant words and phrases
in the constitutional text. Even within a broadly shared framework of
“balancing” power, “formalists” and “functionalists” in the separation
of powers context disagree about whether the balance of power among
the branches is best maintained through case-by-case analysis focused
on practical consequences or by strict adherence to the rules laid down
in the constitutional text. 65 Related disagreements arise over which
normative standards should be used to measure whether power is
“balanced” or has exceeded its constitutional bounds. 66 And all of these disagreements are colored, and often exacerbated by, competing visions of what the structural constitution is supposed to be accomplishing. Those who view the separation of powers as being about
increasing government “efficiency” will find little in common with
those who view it as about preserving “liberty;” the goal of enhancing
“accountability” will often point in a different direction from that of
encouraging “deliberation.” 67
Abstracting from all of this disagreement, however, the least common denominator of most approaches to adjudicating or analyzing
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
64
See, e.g., Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2587 (2012)
(“Construing the Commerce Clause to permit Congress to regulate individuals precisely because
they are doing nothing would open a new and potentially vast domain to congressional authority.”).
65
See Thomas W. Merrill, The Constitutional Principle of Separation of Powers, 1991 SUP. CT. REV. 225, 230–31 (distinguishing the two camps as either taking a rule- or
standard-based approach to the same project of balancing power among the branches); M. Elizabeth Magill, The Real Separation in Separation of Powers Law, 86 VA. L. REV. 1127, 1147–52
(2000) (describing the consensus view that “[t]he system of separation of powers is intended to
prevent a single governmental institution from possessing and exercising too much power,” id. at
1148).
66
See Magill, supra note Error! Bookmark not defined., at 1196.
67
For further discussion of these various functional goals, see infra notes __
and accompanying text.
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structural controversies is some assessment of where power in the
structure of government is located and how it is distributed or redistributed by various legal and political arrangements. 68 Unfortunately,
such assessments have been beset by persistent disagreement and confusion. 69 As this Part describes, structural constitutional analysis has
foundered on a recurring set of ambiguities and discrepancies about
the meaning and location of power in government. 70
A. Power Of Versus Power Over the State
“In framing a government which is to be administered by men over
men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control
itself.” 71 In presenting the challenge of constitutionalism in these
terms, Madison highlighted the distinction between two kinds of power. One is the power of the state to control the governed. The other is
power over the state, asserted through law and politics, that keeps the
government in control. Distinguishing these two forms of power, and
describing their relation to one another, is an important first cut at disentangling power in the structural constitution.
1. Capacity and Control
It is often said that constitutions both build and constrain state
power. 72 Embedded in this statement are two different understandings of what “power” means. The kind of power that constitutions are
supposed to build has been termed “infrastructural power,” meaning
“the capacity of the state to actually penetrate civil society, and to im-
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68
For some approaches to constitutional interpretation, structural concerns
about power, while perhaps relevant to constitutional design or external normative assessment,
would not come directly into play in deciding cases and controversies. See, e.g., John F. Manning,
Foreword: The Means of Constitutional Power, 128 HARV. L. REV. 1, 5 (2014) (arguing that constitutional law should not recognize freestanding principles of separation of powers or federalism
but should simply enforce the textually specified rules and otherwise defer to congresionally determined arrangements).
69
See supra notes __ and accompanying text.
70
For a pioneering discussion of the under-developed and conflicting conceptions of power and what it means to “balance” it in the context of separation of powers, see
Magill, supra note 30. More recently, Eric Posner has cataloged a similar set of confusions and
provided an analytic framework for conducting balance of power analyses that is generally consistent with the approach taken in this Foreword. See Eric A. Posner, Balance-of-Powers Arguments and the Structural Constitution (Inst. for Law and Econ., Working Paper No. 622, 2012).
The discussion that follows builds upon Magill’s and Posner’s foundational work.
71
THE FEDERALIST NO. 51, supra note 1, at 319 (James Madison).
72
See, e.g., STEPHEN HOLMES, PASSIONS & CONSTRAINT: ON THE
THEORY OF LIBERAL DEMOCRACY 6 (1995) (“Constitutions restrict the discretion of powerwielders because rulers, too, need to be ruled. But constitutions not only limit power and prevent
tyranny, they also construct power . . . .”).
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plement logistically political decisions throughout the realm.” 73 State
power in this sense means the ability to accomplish the kinds of things
that states and governments are designed to be able to do: fighting
wars, securing domestic order, raising revenues, promoting economic
development, providing education and health care, and the like. 74
This is the kind of power that “state building” projects are supposed to
build. We might refer to it as power in the sense of state capacity. 75
The second ambition of constitutionalism — though it tends to be
first and foremost in the minds of contemporary constitutional lawyers
and theorists 76 — is to constrain, or control, state power.77 To this
end, constitutional law imposes rules about what the state can and
cannot be used to accomplish and specifies rights that place some uses
off limits. At the same time, the constitutional structure of government and the democratic political system aspire to put state power in
the hands of those who are likely to make good decisions — controlling state power not by regulating its uses but by determining who its
users will be. This is power in a different sense: the political power to
determine what state capacity will and will not be used to accomplish.
It is power over the power of the state. 78
This is the kind of power — the political power of control over the
state — that is most frequently front and center in constitutional law,
and it will be the focus of attention in the pages that follow. As these
pages will elaborate, questions about who does or should exercise the
power of controlling the state can be asked at the level of institutional
and official actors, like the President, Congress, state governments,
courts, and bureaucrats. These questions can also be asked at the level
of voters and citizens: popular majorities, interest groups, and all
manner of coalitions and factions that participate in political
decisionmaking processes.
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
73
Michael Mann, The Autonomous Power of the State: Its Origins, Mechanisms and Results, 25 EUR. J. SOC. 185, 189 (1984) (emphasis omitted).
74
See Daryl J. Levinson, Incapacitating the State, 56 WM. & MARY L. REV.
181, 195 (2014).
75
See id. at 195–96; see also Posner, supra note Error! Bookmark not defined., at 4 (distinguishing the “vertical” power of government to coerce citizens from the “horizontal” power of the different units of government).
76
See WALDRON, supra note 30, at 29–30 (presenting the standard view of
constitutionalism as the project of “controlling, limiting, and restraining the power of the state”).
77
See generally Richard H. Fallon, Jr., Constitutional Constraints, 97 CALIF. L.
REV. 975 (2009) (exploring how the Constitution constrains government decisionmakers).
78
The distinction between these two senses of power is embedded in statements like the following: “Winners of political contests are positioned to use the control of the coercive power of the state to impose their preferences on losers through public policies.” Jacob S.
Hacker & Paul Pierson, After the “Master Theory”: Downs, Schattschneider, and the Rebirth of
Policy-Focused Analysis, 12 PERSP. ON POL. 643, 648 (2014).
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2. Structural Linkages
While it is important to distinguish power in the sense of control
from power in the sense of capacity, it is also important to appreciate
how the two are intertwined. The more power the state possesses, the
more it matters who controls that power. And the more that political
actors doubt that the reins of state power will be held by wellmotivated hands, the more they will seek to reduce or eliminate that
power. Think of state capacity as a potentially useful but dangerous
technology, like nuclear power. The first-best approach to such a
technology is to tightly control how it is used, harnessing the benefits
while avoiding the risks. But when perfect control is impossible and
the downside risks are sufficiently great, we might consider a secondbest, risk-averse strategy of preventing development of the technology
altogether, or taking steps to outlaw or diminish it. In the case of state
power, this nuclear (or no-nuclear) option might be described as state
un-building, or “incapacitating” the state. 79
This basic set of arguments about controlling, building, and incapacitating state power has provided a template for constitutional debates about government structure since the Founding. The design and
ratification of the U.S. Constitution was itself an ambitious project of
state-building. Federalists at the Founding sought to construct a
stronger, centralized government comparable to those of developed
European states. 80 Lacking the capacity to effectively borrow money,
raise taxes, regulate commerce, promote trade, and fight wars, the national “state” under the Articles of Confederation was pathetically
weak. The overarching ambition of the constitutional Framers was to
create a centralized government powerful enough to fulfill the fiscal
and military requirements of respectable statehood. 81
But the colonial experience and revolution had left Americans
deeply suspicious of centralized state power. “Standing armies, centralized taxing authorities, the denial of local prerogatives, [and] burgeoning castes of administrators” did not bring back fond memories of the
82
colonial period. Debates over the Constitution thus pitted the state–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
79
Levinson, supra note 74, at 197 (“Incapacitating a state simply means eliminating or withholding some of the tools or resources that contribute to state capacity — reversing
or stunting the process of state-building.”).
80
See MAX M. EDLING, A REVOLUTION IN FAVOR OF GOVERNMENT 73–
219 (2003).
81
See id. In addition to their material ambitions, the Framers were also seeking recognition and acceptance for the United States as a full-fledged member of the Europecentered society of states. See David M. Golove & Daniel J. Hulsebosch, A Civilized Nation: The
Early American Constitution, the Law of Nations, and the Pursuit of International Recognition,
85 N.Y.U. L. REV. 932, 952–61 (2010).
82
STEPHEN SKOWRONECK, BUILDING A NEW AMERICAN STATE 20
(1982).
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building ambitions of the Convention against fears that a centralized
state with expansive fiscal and military capacities would become a
Frankenstein’s monster that would turn against its citizens. Antifederalists fanned these flames of doubt, 83 missing no opportunity to remind their fellow citizens of “the uniform testimony of history, and experience of society . . . that all governments that have ever been
instituted among men, have degenerated and abused their power.” 84 If
the Federalists got their way, Antifederalists warned, an expansive
federal tax bureaucracy would appear in “every corner of the city, and
country — It will wait upon the ladies at their toilett.” 85 A standing
army would allow a dictatorial president or an oligarchical cabal of
senators to rule “‘at the point of the bayonet . . .’ ‘like Turkish
janizaries enforcing despotic laws.’” 86 In other words: tyranny.
Federalist defenders of the Constitution advanced two kinds of arguments in response. One was that the fiscal and military powers of
the national government that the Antifederalists found so threatening
were also the powers necessary for national defense, domestic order,
and effective governance — the “powers by which good rulers protect
the people.” 87 To be sure, “in every political institution, a power to
advance the public happiness involves a discretion which may be misapplied and abused.” 88 But the Antifederalist prescription for a weak
federal government would therefore be tantamount to “cut[ting] a man
in two in the middle to prevent his hurting himself.” 89 Publius asked
incredulously whether “[w]e must expose our property and liberty to
the mercy of foreign invaders and invite them by our weakness to seize
the naked and defenseless prey, because we are afraid that [the gov–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
83
84
See SAUL CORNELL, THE OTHER FOUNDERS 94–95 (1999).
JACK N. RAKOVE, ORIGINAL MEANINGS 152 (1996) (quoting A Farmer,
reprinted in 3 THE COMPLETE ANTI-FEDERALIST 191 (Herbert J. Storing, ed., 1981)).
85
CORNELL, supra note 83, at 95 (quoting Brutus, VI, N.Y. J., December 27,
1787, reprinted in 15 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE
CONSTITUTION 110, 113 (John P. Kaminski & Gaspare J. Saladino eds., 1984) [hereinafter 15
DHRC]).
86
EDLING, supra note 80, at 110 (first quoting Brutus, Letter I, N.Y. J., Oct.
18 1787 reprinted in 13 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE
CONSTITUTION 411, 420(John P. Kaminski & Gaspare J. Saladino eds., 1981) [hereinafter 13
DHRC]; then quoting Patrick Dollard, Address to the South Carolina Convention (May 21, 1788)
in 4 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE
FEDERAL CONSTITUTION 336, 338 (Jonathan Elliot ed., 2d. 1888) [hereinafter 4 DEBATES]).
87
EDLING, supra note 80, at 100 (quoting A Landholder, Letter V, Conn.
Courant, Dec. 3, 1787 reprinted in 14 THE DOCUMENTARY HISTORY OF THE RATIFICATION
OF THE CONSTITUTION 334, 336 (John P. Kaminski & Gaspare J. Saladino eds., 1983) [hereinafter 14 DHRC]).
88
THE FEDERALIST NO. 41, supra note 1, at 252 (James Madison).
89
EDLING, supra note 80, at 93 (quoting Oliver Ellsworth, Speeches in the
Connecticut Convention (Jan. 7, 1788) in 15 DHRC, supra note 85, at 273, 277–78).
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ernment] . . . might endanger that liberty by an abuse of the means
necessary to its preservation.” 90
At the same time, Federalists argued that the right response to the
risks of state power was not to reduce power but to control it. Democratic control over the national government would ensure that it
served the interests of citizens and did not become a tool of oppression.91 In place of the Antifederalist vision of “Congress as some foreign body . . . [that] will seek every opportunity to enslave us,” Federalists urged Americans to recognize that “[t]he federal representatives
will represent the people; they will be the people;” their “interest is inseparably connected with our own.”92 So long as the power of the national government remained securely under the control of the people,
Federalists assured, it would only be used for good. That was, after
all, the view Antifederalists took toward state governments: states
could be trusted with substantial power because they were under the
close watch and secure control of their citizens. As the influential Antifederalist Federal Farmer put it, state governments ought to be both
“strong and well guarded.” 93 It was only because they expected the
national government to be much less well guarded — controlled by a
group of distant and despotic aristocrats who would be disconnected
from “the body of the people” 94 — that the Antifederalists sought limitations on its power.
These lines of debate have been carried through constitutional development to the present. Thus, Jerry Mashaw describes a “three-step
process of building and binding administrative capacity” that has
characterized the development of the federal administrative state since
the early Republic: “First, something happens in the world. Second,
public policymakers identify that happening as a problem . . . and ini–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
90
91
THE FEDERALIST NO. 25, supra note 1, at 161–62 (Alexander Hamilton).
The meaning of “democratic” in the context of the founding debates is complicated. Federalists were “Republicans” in the sense that they believed the government should
ultimately be tied to popular sovereignty. But they were at pains to prevent too much direct popular influence over government decisionmaking. See generally RAKOVE, supra note 84, at 203–
43; see also Michael J. Klarman, The Framers’ Coup 244 (Jul. 28, 2016) (unpublished manuscript)
(on file with the Harvard Law Review) (emphasizing the Federalists’ antidemocratic ambitions).
92
GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC,
1776–1787 545 (1969) (first quoting Samuel Stillman, Address to the Massachusetts Convention,
(Jan. 9, 1788) in 2 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE
ADOPTION OF THE FEDERAL CONSTITUTION, 162, 167 (Jonathan Elliot ed., 1888) [hereinafter
2 DEBATES]; then quoting J.C. Jones, id. at 28, 29; and then quoting Samuel Stillman, id. at 162,
167).
93
EDLING, supra note 80, at 182 (quoting Federal Farmer, An Additional
Number of Letters to the Republican, Letter XVII, Jan. 23 1788 reprinted in 17 THE
DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 350, 356 (John P.
Kaminski & Gaspare J. Saladino eds., 1995) [hereinafter 17 DHRC]), supra note 85, at 356).
94
RAKOVE, supra note 84, at 230 (quoting Federal Farmer 10, reprinted in 2
THE COMPLETE ANTI-FEDERALIST 285 (Herbert J. Storing, ed., 1981)); see id. at 229–30.
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tiate new forms of governmental action . . . . Third, these new forms
of action generate anxieties about the direction and control of public
power.
Means are thus sought to make the new initiative
. . . accountable . . . .” 95 In other words, expansions in administrative
state capacity go hand in hand with efforts to secure control over how
that greater capacity will be deployed. The more powerful the administrative state becomes, the greater the stakes of who controls it.
These stakes have grown enormously over the course of American
political and constitutional development. In the early Republic and
antebellum America, the national government truly was “a midget institution in a giant land.” 96 At the start of the Jefferson Administration, the total federal workforce in Washington numbered 153. 97 As of
1840, the national government employed approximately 20,000 people,
14,000 of whom worked for the Post Office. 98 In place of the centralized bureaucratic capacity that defined European states, America operated with a decentralized administrative framework constructed
loosely through the locally grounded institutions of courts and political
parties. 99 Fast forward to today, when the federal government employs over two million civilians and 1.4 million active duty military
100
The government is not just visibly larger but — along
personnel.
countless dimensions in the military, economic, and social spheres —
vastly more capable.
One reaction to the expansive modern regulatory state is to conclude, simply, that it has become too big and too dangerous, suggesting
that the only solution is to shrink or dismantle it.101 The Antifederal–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
95
Jerry L. Mashaw, Recovering American Administrative Law: Federalist
Foundations, 1787–1801, 115 YALE L.J. 1256, 1337 (2006).
96
EDLING, supra note 80, at 228 (quoting John M. Murrin, The Great Inversion, or Court Versus Country: A Comparison of the Revolutionary Settlements in England (16881721) and America (1776-1816), in THREE BRITISH REVOLUTIONS: 1641, 1688, 1776 368, 425
(J.G.A. Pocock ed., 1980)) (internal quotation marks omitted).
97
BRIAN BALOGH, A GOVERNMENT OUT OF SIGHT 112 (2009).
98
Ira Katznelson, Flexible Capacity: The Military and Early American
Statebuilding, in SHAPED BY WAR AND TRADE: INTERNATIONAL INFLUENCES ON
AMERICAN POLITICAL DEVELOPMENT 82, 89 (Ira Katznelson & Martin Shefter eds., 2002).
99
SKOWRONEK, supra note 82, at 19–35.
100
See Total Government Employment Since 1962, U.S. OFFICE OF PERS.
MGMT.,
https://www.opm.gov/policy-data-oversight/data-analysis-documentation/federalemployment-reports/historical-tables/total-government-employment-since-1962/ (last visited Aug.
31, 2016) (indicating that in 2014, the last year listed, the federal government employed 2.663 million civilians in the executive branch, 1.459 million uniformed personnel in the military, and 63
thousand people in the legislative and judicial branches).
101
See, e.g., RANDY E. BARNETT, RESTORING THE LOST CONSTITUTION
(2004) (arguing that policies that cannot overcome a “Presumption of Liberty” are unlawful, id. at
259); CHARLES MURRAY, BY THE PEOPLE: REBUILDING LIBERTY WITHOUT PERMISSION
(2015) (describing how libertarian freedom has been eroded by the growth of government and urging resistance); PHILIP HAMBURGER, IS ADMINISTRATIVE LAW UNLAWFUL? (2014) (arguing
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ist reaction to state power has lived on as a pronounced libertarian
strain in American political and constitutional thought, suspicious of
the power of “big government” and ever vigilant about protecting the
liberty of citizens against the ubiquitous threat of government tyranny.
But Federalist responses have lived on as well. Proponents of a powerful presidency starting with Hamilton have emphasized the incapacity of government to regulate a modern industrial economy and the
need for a state capable of matching and managing the “concentrations
of [corporate] power on a scale that beggars the ambitions of the Stuarts.” 102 For those who accept the necessity and desirability of the
formidable power of the administrative state, the crucial question is
who will control it. 103 From this perspective, “[t]he history of the
American administrative state is the history of competition among different entities for control of its policies” — the President, Congress, expert bureaucrats, interest groups, and democratic majorities. 104
Or consider ongoing debates about the power of an increasingly
“imperial” presidency. The “imperial” designation itself conflates two
different claims about presidential power, one going to control and the
other to capacity. The first is that presidents have come to control
more and more of the actions of the executive branch and the federal
government as a whole, replacing Congress as the primary
decisionmaker in government and “unifying” the executive branch so
that agencies and bureaucrats increasingly march under White House
orders. 105 The second claim is that the executive branch over which
the President presides is increasingly formidable, featuring the vast bureaucracy, unlimited regulatory reach, and all the other resources of
the administrative and national security state. The imperial President
is the primary holder of power over that powerful state apparatus. 106
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
against the lawfulness of an administrative state that “increasingly imposes profound restrictions
on [Americans’] liberty,” id. at 1); LIBERTY’S NEMESIS: THE UNCHECKED EXPANSION OF
THE STATE (Dean Reuter & John Yoo eds., 2016) (cataloging recent exercises of administrative
power that threaten individual liberty).
102
JAMES M. LANDIS, THE ADMINISTRATIVE PROCESS 46 (1938).
103
Cf. Peter L. Strauss, The Place of Agencies in Government: Separation of
Powers and the Fourth Branch, 84 COLUM. L. REV. 573 (1984) (conceptualizing separation of
powers in the administrative state as shared control by Congress, the Supreme Court, and the
President over administrative government).
104
Elena Kagan, Presidential Administration, 114 HARV. L. REV. 2246, 2245
(2001).
105
See HOWELL & MOE, supra note 7, at xvii (arguing that effective government depends upon shifting power to the presidency, which is “wired to be the nation’s problemsolver[] in chief”).
106
See, e.g., William P. Marshall, Eleven Reasons Why Presidential Power Inevitably Expands and Why It Matters, 88 B.U. L. REV. 505 (2008). Some of the variables to which
Marshall attributes the expansion of presidential power, such as the growth of the federal bureaucracy and the military and intelligence capabilities of the U.S. government, speak to capacity. See
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As the language of “imperialism” suggests, that combination of
power poses great risk. Americans have long feared that the presidency would grow from a “foetus of monarchy” 107 into a full-blown dictatorship, and the vast capabilities of the executive branch suggest that a
presidential dictatorship would be more totalitarian than tin pot. On
the other hand, as proponents of presidential power starting with
Hamilton have emphasized, presidential power can also be a force for
good. For those who look to the presidency for “energy” 108 and efficacy in government and on the world stage, imperial power is cause for
celebration. 109 For example, Professors Eric Posner and Adrian
Vermeule approvingly describe how modern presidents have unshackled themselves from outdated constraints on executive capacity, such
as constitutional rights and congressional limitations, and seized nearly
complete control over the national state . 110 This perspective in part
reflects what Posner and Vermeule portray as the indispensible benefits of presidential power: “[t]he complexity of policy problems . . . the
need for secrecy in many matters of security and foreign affairs, and
the sheer speed of policy response necessary in crises” play to the executive’s distinctive institutional strengths. 111 If efficacious governance
is going to come from anywhere, it will be the White House.
At the same time, Posner and Vermeule emphasize that the risks of
presidential power are mitigated by the President’s tightly reined accountability to public opinion.
For Posner and Vermeule,
“tyrannophobi[c]” fears of unbounded presidential power founder on
the plebiscitary accountability of presidents to the American public. 112
Other theorists take a similar view of “the presidency’s rise as not just
the most dangerous branch, but the most accountable branch as
well.” 113 Thus, Professor Jack Goldsmith describes how the menacing
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id. at 514, 517. Others, such as greater presidential command over the administrative state and
information disparities between the President and Congress, speak to control. See id. at 515–16.
107
This was Edmund Randolph’s description of the presidency at the Philadelphia Convention. 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787 66 (Max Farrand ed., 1911).
108
See THE FEDERALIST NO. 70, supra note 1, at 421 (Alexander Hamilton)
(“Energy in the executive is a leading character in the definition of good government.”).
109
See Richard H. Pildes, Law and the President, 125 HARV. L. REV. 1381,
1383 (2012) (book review) (describing demands for a presidency that is “an instrument of effective
power”).
110
See POSNER & VERMEULE, supra note 4.
111
Id. at 9.
112
See id. at 176 (describing “the fear of unbridled executive power” in American political and constitutional culture as “tyrannophobia”). On the plebiscitary accountability of
the modern presidency, see supra note 11 and accompanying text. To avoid confusion, note that
“plebiscitary” is sometimes used in a different and nearly opposite sense to mean accountable only
at election time but unaccountable to Congress, the press, or the public while actually governing.
See, e.g., SCHLESINGER, supra note 6, at 255.
113
Flaherty, supra note 3, at 1731.
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power of the post-9/11 presidency has given rise to a “synopticon” of
“watcher[s]” — Congress, journalists, human rights advocates, lawyers,
and judges — who monitor, publicize, and check the President’s every
move. 114 In Goldsmith’s view, expansive executive power begets intensive accountability, which in turn legitimates presidential power
and even strengthens it. 115 Capacity and control — or in Goldsmith’s
synonymous title, Power and Constraint — go hand in hand. 116
Skeptics of the imperial presidency, like the Antifederalists at the
Founding, are less sanguine about the possibility of democratic control.
Professor Bruce Ackerman’s alarmist view of the modern presidency,
for instance, is premised on democratic breakdown resulting in a “runaway presidency.” 117 Responsive to this concern, Ackerman proposes
a set of reforms designed to bring the President back under democratic
and legal control by “Enlightening Politics” 118 and “Restoring the Rule
of Law.” 119 But Ackerman goes further, urging not just that the presidency be controlled but also that it be incapacitated – by limiting authority to engage in sustained military actions,120 fragmenting the unitary and hierarchical structure of the executive branch, 121 or even
eliminating the presidency altogether. 122 As Ackerman recognizes,
draining the presidency of power would come at a high cost to proponents of “activist government — dedicated to the on-going pursuit of
economic welfare, social justice, and environmental integrity.” 123
Nonetheless, in light of the grave downside risks, Ackerman is prepared to make this “tragic choice[].” 124
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114
115
116
GOLDSMITH, supra note 12, at xi–xiii, 206.
Id. at xv–xvi.
Stephen Skowronek sees a similar complementarity between capacity and
control in the broad sweep of American political development with respect to the presidency, with
each major historical expansion of presidential power accompanied by a corresponding effort to
increase democratic accountability and control. Stephen Skowronek, The Conservative Insurgency and Presidential Power: A Developmental Perspective on the Unitary Executive, 122 HARV. L.
REV. 2070 (2009).
117
ACKERMAN, supra note 2, at 6. Ackerman argues that the democratic accountability of the President is being undermined by the diminishing influence of party elites and
the professional press as gatekeepers, id. at 18–29, and by a resulting “politics of unreason” that
fogs democratic decisionmaking, id. at 9.
118
Id. at 119–40.
119
Id. at 141–79.
120
See id. at 168.
121
See id. at 152–59.
122
See Bruce Ackerman, The New Separation of Powers, 113 HARV. L. REV.
633, 727–28 (proposing that the United States switch to a modified parliamentary system of government).
123
ACKERMAN, supra note 2, at 124.
124
Id. The original critic of the imperial presidency, Arthur Schlesinger, struggled with the same dilemma but came out in a different place. Schlesinger argued that we should
seek a “means of reconciling a strong and purposeful Presidency with equally strong and purpose-
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Longstanding debates about the separation of powers track the
same dilemma of state power and dialectic between capacity and control. In one view, the primary point of separationism is to “preserve
liberty by disabling government.” 125 Dividing the government into
separate branches and chambers that must act in concert serves to
multiply veto points, increase transaction costs, and make it generally
more difficult for the national government to impose tyranny, threaten
liberty, or do anything else. 126 For those who believe that the “the facility and excess of lawmaking seem to be the diseases to which our
governments are most liable,” any “additional impediment” against legislation will be welcome. 127 As Hamilton summarized the argument,
“[t]he injury which may possibly be done by defeating a few good laws
will be amply compensated by the advantage of preventing a number
of bad ones.” 128 Contemporary libertarians make much the same calculation. 129 From the opposite direction, however, progressives and
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ful forms of democratic control.” SCHLESINGER, supra note 6, at xxviii; see also GOLDSMITH,
supra note 12, at xvi (highlighting that this was Schlesinger’s bottom line).
125
CASS R. SUNSTEIN, AFTER THE RIGHTS REVOLUTION 15–16 (1993); see
also Myers v. United States, 272 U.S. 52, 293 (1926) (Brandeis, J., dissenting) (“The doctrine of the
separation of powers was adopted by the Convention of 1787, not to promote efficiency but to
preclude the exercise of arbitrary power.”); Boumediene v. Bush, 553 U.S. 723, 742 (2008) (noting
that “[t]he Framers’ inherent distrust of governmental power was the driving force behind” the
constitutional separation of powers, which serves to “secure individual liberty”); John F. Manning,
Lawmaking Made Easy, 10 GREEN BAG 2D 191, 204 (2007) (arguing that the constitutional design “manifestly places value upon cumbersomeness, high transaction costs, and even (to some
extent)
gridlock”).
A competing strain of thought is that the separation of powers might actually foster government
efficiency, in the manner of a Fordist assembly line. See AKHIL REED AMAR, AMERICA’S
CONSTITUTION 64 (2005) (“Separation of powers also facilitate[s] a certain degree of specialization of labor, enabling each branch to . . . operate more efficiently.”); Louis Fisher, The Efficiency
Side of Separated Powers, 5 J. AM. STUD. 113, 115 (1971) (“[F]or the Framers, efficiency was a
fundamental goal and a separate executive the necessary means.”); see also Magill, supra note
Error! Bookmark not defined., at 1184–85 (noting the tension between the efficiency and
inefficiency justifications for separation of powers).
126
It bears emphasis that impeding national government action does not simply
mean that there will be less government and hence less risk of government tyranny. For one thing,
the status quo, reflecting prior government action, may itself be tyrannical. For another, disabling
the national government will create more space for state and local government policymaking, another potential source of tyranny.
127
THE FEDERALIST NO. 62, supra note 1, at 376 (James Madison).
128
THE FEDERALIST NO. 73, supra note 1, at 442 (Alexander Hamilton).
129
See, e.g., RICHARD A. EPSTEIN, THE CLASSICAL LIBERAL
CONSTITUTION 5–6 (2014) (“[T]he classical view of American constitutionalism examined all
legal interventions under a presumption of error. The structural protections of the separation of
powers, checks and balances, federalism and the individual rights guarantees built into the basic
constitutional structure were all part of combined efforts to slow down the political process that,
left to its own devices, could easily overheat.”); see also Stephen Gardbaum, Political Parties, Voting Systems, and the Separation of Powers, 65 AM. J. COMPARATIVE L. (forthcoming 2017) (draft
at 43) (attributing “the Madisonian focus on divided government and political competition among
institutions” in the U.S. political system to “[t]he risk-averse strain in American political culture
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other proponents of powerful government have long lamented a constitutional design that created a government “divided against itself” and
thereby “deliberately and effectively weakened.” 130 Exacerbated by
polarized political parties and divided government, separation of powers-induced gridlock is now more than ever a source of frustration for
those who look to government in Washington for solutions to pressing
social problems.
Here again, whether gridlocked and inefficient government is a bug
or a feature will depend on predictions of what an unfettered national
state might use its power to accomplish. These predictions, in turn,
will depend on who is likely to control the direction of the federal government. One dark possibility, salient at the Founding, was that control over one or more branches of government would fall into the
hands of venal officials or dominant and dangerous factions. 131 In his
Federalist No. 51, Madison famously defended the incapacitating potential of the separation of powers as an “auxiliary precaution[]” 132 in
case the right kind of democratic control over the government —
whether stemming from its democratic “dependence on the people” 133
or the hope that “[e]nlightened statesmen will . . . be at the helm” 134 —
failed. 135 From this perspective, the incapacitating potential of separation of powers was supposed to be a substitute for reliably wellfunctioning democratic accountability. 136
But separation of powers has also been viewed as a complement to
From this perspective, legislativedemocratic accountability. 137
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that is deeply skeptical and fearful of government,” and has therefore prioritized “dispersing and
slicing up political power”).
More generally, Adrian Vermeule identifies a prominent strain of “precautionary” thought in
American constitutionalism, which he describes as follows:
[C]onstitutional rules should above all entrench precautions against the risks that official
action will result in dictatorship or tyranny, corruption and official self-dealing, violations of the
rights of minorities, or other political harms of equivalent severity. On this view, constitutional
rulemakers and citizens design and manage political institutions with a view to warding off the
worst case. The burden of uncertainty is to be set against official power, out of a suspicion that
the capacity and tendency of official power to inflict cruelty, indignity and other harms are greater
than its capacity and tendency to promote human welfare, liberty, or justice.
ADRIAN VERMEULE, THE CONSTITUTION OF RISK 11 (2014).
130
Pildes, supra note 109, at 1383 (quoting HERBERT CROLY, PROGRESSIVE
DEMOCRACY 40 (1915)).
131
See, e.g., Cass R. Sunstein, Interest Groups in American Public Law, 38
STAN. L. REV. 29, 42–44 (1985).
132
THE FEDERALIST NO. 51, supra note 1, at 319 (James Madison).
133
Id.
134
THE FEDERALIST NO. 10, supra note 1, at 75 (James Madison).
135
THE FEDERALIST NO. 51, supra note 1, at 319 (James Madison).
136
See See Jide O. Nzelibe & Matthew C. Stephenson, Complementary Constraints: Separation of Powers, Rational Voting, and Constitutional Design, 123 HARV. L. REV.
617, 625 (2010).
137
See Levinson & Pildes, supra note 29, at 2343–44.
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executive separationism is supposed to facilitate broad-based interest
representation and work together with elections to better reflect democratic will: “different branches chosen at different times through different voting rules might together produce a more accurate and more
stable composite sketch of deliberate public opinion.” 138 Moreover, the
branches are supposed to monitor and check one another on an ongoing basis, providing information to voters about the doings and misdoings of their representatives and thereby facilitating electoral control. 139 To the extent the system of separation of powers succeeds in
fostering democratic accountability, it will no longer be needed as an
incapacitation device. 140 The complementary relationship between
power over the state and the power of the state might make the separation of powers self-defeating.
Separation of powers aside, the important general takeaway is the
distinction and the relationship between the power of the state and
power over the state: capacity and control. Over more than two centuries, the constitutional state-building project has produced what is
now a “global leviathan.” 141 This vast increase in the power of the
American state has raised the stakes of the question this Foreword
brings into focus: who controls it?
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138
139
AMAR, supra note 125, at 64.
See Nzelibe & Stephenson, supra note 136, at 626. Nzelibe and Stephenson
advance the further argument that separation of powers can facilitate electoral control by informing the retrospective voting strategies of rational voters. Id. at 620–21.
140
It is not at all clear that the separation of powers improves democratic accountability in comparison to plausible alternatives. A long line of thought compares the U.S.
system of separation of powers unfavorably along this dimension to the British system of parliamentary government, unified by single party control of an omnipotent legislature. From this perspective, the American diffusion of power among the branches and chambers of Congress, especially when they are under divided party control, undermines the ability of voters to apportion
responsibility. See Levinson & Pildes, supra note 29, at 2325–26, 2342–43. Other approaches to
dividing power might do a better job of facilitating electoral accountability. See, e.g., Jacob E.
Gersen, Unbundled Powers, 96 VA. L. REV. 301 (2010) (exploring the possibility of dividing government into branches not by function but by policy topic and suggesting that approach might
enhance electoral control).
141
William J. Novack, The Myth of the “Weak” American State, 113 AM. HIST.
REV. 752, 758 (2008).
142
See, e.g., Daryl J. Levinson, Empire-Building Government in Constitutional
Law, 118 HARV. L. REV. 915, 917 n.3 (2005) (viewing government institutions as exercising power
whenever they make policy by legislating, regulating, or adjudicating).
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[Parts I.B-D omitted]
II. From Institutions to Interests
Structural constitutional law is focused on how power is distributed
among government institutions — Congress, the President, agencies,
and the like. The previous Part described a number of challenges in
this regard. But the difficulty of locating power goes deeper. The ultimate holders of power in American democracy are not government
institutions but democratic interests: the coalitions of policy-seeking
political actors — voters, parties, officials, interest groups — that
compete for control of these institutions and direct their
decisionmaking. Locating policymaking power therefore requires not
only identifying the relevant institutional decisionmakers but also
“passing through” the power of each institution to the underlying interests that control its decisionmaking. 290 Because the law and theory
of the structural constitution seldom take this second step, standard
analyses of power are not only dubiously accurate as far as they go but
also crucially incomplete.
The gap between the power of institutions and the power of interests provides a parsimonious explanation for some familiar features of
political behavior and constitutional disputation. Because powerseeking political actors are intrinsically indifferent to the distribution
of power at the institutional level, government institutions will have no
hard-wired or consistent tendency to aggrandize their own power or
compete with one another for power. And policy-minded actors will
tend to derive their views about how power should be distributed at
the institution level based on politically contingent observations or
predictions about how that power will be passed through to interests
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290 Cf. Victoria Nourse, The Vertical Separation of Powers, 49 DUKE L.J. 749, 789 n.157 (1999)
(emphasizing that shifts in power among the branches of government affect the relative power of
“constituencies” or “political voices”).
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— causing their institutional level judgments to shift with the political
winds (or “flip-flop”). 291
The disconnect between institutions and interests also raises rather
fundamental questions about the stakes of structural controversies and
about why constitutional law should be concerned with balancing institutional power or worrying about its concentration in a single
branch or unit of government. Separation of powers and federalism
were once conceived as mechanisms for balancing power among interests and social groups, and both structural design strategies are still
used for that purpose in constitutional systems elsewhere in the world.
In the U.S. system as it currently operates, however, the distribution of
power at the structural level bears no systematic relation to the distribution of power at the democratic level. Diffusing and balancing
power among government institutions is no guarantee that power will
be similarly diffused or balanced among political interests or social
groups.
A. Institutional Indifference
There is a striking discrepancy between constitutional law’s intense
concern with how power is distributed among government institutions
and the indifference to institutional power that is on daily display
among power-seeking political actors — including the officials who
populate these institutions. That indifference is telling of where meaningful power is located: not at the level of institutions but at the level
of interests.
1. Passing Through Power
Let us return to the distinction between “doing” and “deciding.” 292
Government acts through institutions — Congress (subdivided into the
House and Senate, committees, etc.), the executive branch (similarly
subdivided into the White House, various agencies, etc.), and courts
most prominently. But these institutions do not decide what government does. The actual deciders, and hence holders of power, are the
political actors who control the relevant institutions. These actors include, most proximately, the government officials who populate the
branches and units of government and direct their decisionmaking —
the President, members of Congress, heads of agencies, and and other
high-level public employees. 293 Government officials, in turn, represent and are influenced in varying degrees by electoral majorities, political parties, interest groups, and other “democratic” constituencies.
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
291 See Eric A. Posner & Cass R. Sunstein, Institutional Flip-Flops, 94 TEX. L. REV. 485, 493
(2016).
292 See supra note 164 and accompanying text.
293 But cf. Howell & Moe, supra note 7, at 47–62 (arguing that the parochial outlook of individual members of Congress results in cobbled together collections of special interest provisions
rather than coherent and effective policy programs).
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Officials and their democratic constituencies form coalitions based on
shared policy goals and compete for control over government institutions in order to advance those goals. These policy-based coalitions, or
interests, are the ultimate deciders in government.
That, in a nutshell, is how democracy works. Of course, there are
many complications embedded in this caricature. Among these is the
relationship between government officials and the democratic-level
constituencies that influence their decisionmaking. How decisional
power is, and should be, divided between democratic principals and
their representative agents are among the most well-worn topics in political science and theory. 294 This is another level at which it is important to distinguish between the visible “doers” — government officials — and the democratic actors — voters, interest groups, political
parties, and the like — who are, to a considerable extent, the actual
“deciders.”
For present purposes, however, the important point is that government decisionmaking is driven by the policy preferences of the officials
and democratic-level constituents — in whatever combination — that
comprise interest-based political coalitions. As a result, parsing political decisionmaking power requires a two-level analysis. The first step
is to identify the relevant institutional decisionmakers — Congress, the
President, agencies, and the like — and weigh their relative influence.
The second, and crucial, step is to “pass through” the power of each
institution, allocating it among the controlling interests.
Because structural constitutional analysis typically begins and ends
at the first level, the distribution-of-power consequences of structural
controversies are left obscure. We might wonder, for instance, how decisional power is redistributed when Congress creates independent
agencies, insulated from presidential control by for-cause limitations on
removal. Confronted with the dual for-cause buffer between the President and the Public Company Accounting Oversight Board (PCAOB)
created by the Sarbanes-Oxley Act, the Supreme Court concluded that
this arrangement impermissibly diminished presidential power over
agency decisionmaking, leaving PCAOB decisionmaking to unelected
“functionaries” while also “provid[ing] a blueprint for extensive expan295
sion of the legislative power.” Even if this assessment of institutionlevel power is correct, however, it tells us nothing about resulting pow–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
294 At the level of normative theory, see, for example, HANNAH FENICHEL PITKIN, THE
CONCEPT OF REPRESENTATION (1967). At the level of descriptive political science, see, for
example, DEMOCRACY, ACCOUNTABILITY, AND REPRESENTATION (Adam Przeworski et al.
eds., 1999).
295 Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 499–500 (2010)
(quoting Metro. Wash. Airports Auth. v. Citizens for Abatement of Aircraft Noise, Inc., 501 U.S.
252, 277 (1991)).
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er of interests or policy consequences. For all we know, the same interest-based constituencies will exercise the same relative influence
over PCAOB policymaking regardless of whether that influence is
channeled through the President, Congress, or the SEC and the
296
PCAOB more directly.
Sometimes, shifting power at the level of government institutions
really will have no consequences at all for interest-level power. If a
dominant interest group or single-minded majority can equally well
control decisionmaking in Congress, the White House, administrative
agencies, or anywhere else, then moving institutional-level power
around will make no difference. If it is true, as some contend, that
“organized wealth” has captured both political parties and come to
dominate decisionmaking across all the branches and levels of government on issues like financial reform and tax policy, 297 then shifting
institutional decisionmaking authority on these issues will do nothing
to change policy outcomes. Many constitutional debates about the
post-9/11 war on terrorism take for granted that a strictly enforced requirement of Congressional authorization for presidential actions —
military strikes, detentions, surveillance programs, and the like — will
be consequential in protecting rights and liberties and guarding against
abuses of power. 298 But if Congress and the President answer to the
same constituencies — if, for example, “a large national majority dominates both Congress and the presidency and enacts panicky policies
[or] oppresses minorities” 299 — then shifting their relative
decisionmaking authority will have no bearing on outcomes.
But, of course, shifting power at the level of government institutions often will have real consequences for interest-level power and
hence policy outcomes. This will be the case whenever different institutions are controlled by different interests and consequently display
divergent policy preferences. When the Democrats control the White
House and Republicans control the House and Senate, for example,
policy outcomes on many issues will turn on the relative power of the
President and Congress. Proponents of more stringent environmental
regulation or permissive immigration policies will prefer that the relevant policy decisions be placed in the hands of the President. But this
is entirely contingent on shifting patterns of partisan control. As soon
as a Republican President occupies the White House, proponents of
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296 Cf. Aziz Z. Huq, Removal As a Political Question, 65 STAN. L. REV. 1, 52–70 (2013) (questioning the linkage between presidential control and democratic accountability).
297 See Andrias, supra note Error! Bookmark not defined..
298 See Samuel Issacharoff & Richard H. Pildes, Between Civil Libertarianism and Executive
Unilateralism: An Institutional Process Approach to Rights During Wartime, 5 THEORETICAL
INQUIRIES L. 1 (2004).
299 POSNER & VERMEULE, supra note 169, at 46.
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progressive environmental and immigration policies will prefer that
power be reallocated to a more sympathetic decisionmaker.
The point is a general one: for power-seeking political actors, institutional power matters only on account of expected policy outcomes;
when expected outcomes change, so do judgments about institutional
power. This contingency is what accounts for the familiar observation
that in political and constitutional debates about the best allocation of
decisionmaking authority among government institutions, advocates
often “flip-flop,” switching positions depending on which political party or coalition controls the relevant institutions. 300 Positions on presidential signing statements, recess appointments, unilateral actions, and
other assertions of executive power predictably depend on which party
controls the White House. Senators take different positions on the filibuster and on the need to consider or confirm Supreme Court nominations during an election year depending on whether they are in the majority or minority, or whether they are co-partisans with the President.
Those who disagree with Supreme Court decisions on the substantive
merits (including dissenting Justices) brand them activist and antidemocratic, while applauding (or authoring) no less activist or antidemocratic — but substantively more agreeable — opinions.
For those who take a longer view, the interest-level consequences of
institutional power very quickly become unpredictable. This is one of
the important points of Elizabeth Magill’s pioneering work on separation of powers. 301 Magill asks: Suppose we simply got rid of the Senate’s advice and consent on treaties and the nominations of judges and
executive officials, making the President sole decider and thus (let us
assume) increasing the power of the President relative to the Senate. 302
Would there be any predictable effects on the power of democraticlevel actors that would shift substantive policy in any particular direction? In the short run, surely; but in the longer run, perhaps not. As
Magill explains, the groups:
[T]hat influence the Senate and the executive on policy questions
are often not systematically differentiated. . . . There may be periods in
time where there are systematic differences in interest groups’ ability
to influence decisions in the executive and the Senate . . . . But . . . .
such differences will not be stable across time and cannot be used as a
basis for predicting the effect of an arrangement. 303
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300
301
302
303
See Posner & Sunstein, supra note 291.
See Magill, supra note 30, at 640–41.
Id.
Id. at 641. Aziz Huq draws a similar conclusion about the effect of expanding or contracting presidential power on individual liberty. Given the lack of “strong correlations between
branch power and the preservation of individual liberties,” Huq argues, the most we can say is
that “[e]xpansions of presidential power . . . can either enlarge or contract regard for individual
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Something similar might be said about any structural reallocation
of power that is meant to endure beyond the next election cycle.
When decisions about institutional power have no effect, or no predictable effect, on the relative power of competing interests, policyminded political actors will view structural controversies as a matter
of indifference. Behind a veil of ignorance as to the constellation of
interests that will control the relevant institutions and consequently the
policy consequences of institutional choice, there may be little reason
to do more than shrug. 304
Veils of ignorance with respect to the power of interests over institutions come in varying degrees of opacity. Over long time horizons, it
really is hard to come up with reliable generalizations about differences at the highest levels of constitutional structure. In the domain of
separation of powers, conventional wisdom once held that the President, elected by a national majority, tends to be more responsive to the
median voter, whereas members of Congress are more accountable to
the geographically localized constituencies and interest groups they
depend upon for reelection. 305 Upon closer inspection, however, that
institutional caricature turned out to be theoretically and empirically
306
Comparable hypotheses about the states and the national
dubious.
government advanced in the context of federalism have proven similarly suspect. 307 For example, it was once widely believed that nation–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
liberties depending upon whether the executive is displacing a Congress with either more authoritarian or more libertarian preferences.” Aziz Z. Huq, Libertarian Separation of Powers, 8 N.Y.U.
J.L. & LIBERTY 1006, 1037 (2014).
304 See Posner & Sunstein, supra note 291, at 495–96, 527–28. On the use and operation of
“veil of ignorance” mechanisms generally in public law, see generally ADRIAN VERMEULE,
MECHANISMS OF DEMOCRACY 31–71 (2007). Again, however, political actors can cast off the
veil by deciding institutional questions one case at a time, on the basis of predictable policy outcomes — flip-flopping. Alternatively, political actors can try to gerrymander the dimensions of
institutional power. For example, conservatives will tend to support constraints on the President’s
treaty-making authority that apply predominantly in the context of human rights and do not interfere with negotiating free-trade agreements. See Jide Nzelibe, Our Partisan Foreign Affairs
Constitution, 97 MINN. L. REV. 838, 842 (2013); Jide Nzelibe, Partisan Conflicts over Presidential
Authority, 53 WM. & MARY L. REV. 389, 392 (2011).
305 See, e.g., Steven G. Calabresi, Some Normative Arguments for the Unitary Executive, 48
ARK. L. REV. 23, 58–70 (1995); Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 COLUM. L. REV. 1, 105–06 (1994); Nourse, supra note 290, at 765–67.
306 See Jide Nzelibe, The Fable of the Nationalist President and the Parochial Congress, 53
UCLA L. REV. 1217 (2006); see also STEPHENSON, Statutory Interpretation by Agencies, supra
note 164, at 303–04 (collecting and discussing the theoretical and empirical literature on this
point).
307 Federalism may implicate a predictable policy slant for reasons other than differences in
interest-level power. Decentralization of governance reliably impedes some forms of regulation
and economic redistribution by making it more difficult to deal with externalities and by creating
a race to the bottom with respect to wealth transfers. Not surprisingly, then, while views on the
allocation of decisionmaking authority between the national government and the states are often
driven by case-specific policy consequences and flip politically depending on the issue, see Ed-
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al environmental regulation would be predictably more stringent than
state regulation because state regulators would be hindered by disproportionate industry influence and because interstate competition that
would create a “race to the bottom.” Neither turns out to be reliably
true. 308
On the other hand, even over the long term, some lower-level
government institutions might well be systematically more susceptible
to influence by certain kinds of interests, resulting in predictable policy
slants. Agencies, for example, can be structured to “stack the deck” in
favor of certain interests. 309 The Supreme Court, for its own part,
seems to display a reliable, modestly countermajoritarian tendency to
give effect to elite preferences on social issues like free speech, gay
rights, and school prayer. 310 Moreover, as will be discussed further below, there have been periods of decades in American history when, owing to the vagaries of politics, certain interests have had sufficiently
stable control over institutions such that they could be reliably empowered or disempowered through shifts in the separation of powers
or federalism. 311 For participants in antebellum contests over slavery
or the race-related controversies of the civil rights era, the interestlevel stakes of federalism were crystal clear. So, too, were the consequences of activist judicial review, whether by the Taney or Warren
Courts. During the forty-year period when Democrats controlled the
House of Representatives or the twenty-year period when Presidents
Roosevelt and Truman sat in the White House, the partisan stakes of
separation of powers were similarly transparent. The same has been
true of the Supreme Court for periods as long as a generation when the
ideological leanings of the justices have been predictably to one side or
the other of the political braches. 312
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
ward L. Rubin & Malcolm Feeley, Federalism: Some Notes on a National Neurosis, 41 UCLA L.
REV. 903, 948 (1994) (“[C]laims of federalism are often nothing more than strategies to advance
substantive positions . . . .”), overall support for decentralization skews noticeably to the political
right, see Keith E. Whittington, Dismantling the Modern State? The Changing Structural Foundations of Federalism, 25 HASTINGS CONST. L.Q. 483, 505 (1998).
308 See Richard L. Revesz, Rehabilitating Interstate Competition: Rethinking the “Race-to-theBottom” Rationale for Federal Environmental Regulation, 67 N.Y.U. L. REV. 1210 (1992) (refuting the claim that interstate competition would cause states to minimize the stringency of environmental regulation); Richard L. Revesz, Federalism and Environmental Regulation: A Public
Choice Analysis, 115 HARV. L. REV. 555 (2001) (debunking the claim that pro-regulatory political
coalitions will compete more successfully with industry interest groups at the federal level as
compared to the states).
309 See infra notes 424–26 and accompanying text.
310 See Michael J. Klarman, What’s So Great About Constitutionalism?, 93 NW. U. L. REV.
145, 189–91 (1998).
311 See infra notes 366–86 and accompanying text.
312 See Barry Friedman, The Cycles of Constitutional Theory, 67 L. & CONTEMP. PROBS. 149
(2004) (describing how theoretical defenses and criticisms of judicial review have coincided with
the political slant of the Supreme Court as compared to the political branches). Friedman writes:
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And then, of course, there is the short-term and the present, when
it has become transparent which interests influence which institutions.
At that point, the policy consequences of structural power will be visible to all, and political actors will form institutional preferences accordingly — even if this requires them to flip-flop. But let us not lose
sight of the general point, from which the flip-flopping and all the rest
follows. The policy consequences of how power is distributed at the
level of government institutions depend on how that power is passed
through to interests. A myopic focus on power at the level of constitutional structure misses most of the action.
2. Power-Hungry Institutions?
The failure to pass through power from institutions to interests also
accounts for an entrenched set of misunderstandings about the dynamics of power in the structural constitution. Broad swathes of the law
and theory of the structural constitution are based on a “Madisonian”
model that features perpetually power-seeking government institutions
seeking to expand their policymaking turf at the expense of rivals. 313
In the domain of separation of powers, the perpetual risk is that the
self-aggrandizing branches of the national government will encroach
on the power of their rivals, while the optimistic hope is that the interbranch competition for power will result in a balanced equilibrium of
“[a]mbition . . . counteract[ing] ambition.” 314 Much of the law and
theory of constitutional federalism similarly supposes that an imperialistic national government intent on consolidating all government pow–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
“[F]rom 1890 until 1937 it was possible to know what side one was on. The courts were conservative. The political branches were (more) progressive. . . . All of that changed in the period between 1937 and 1968. Things flipped. The Court became the progressive force for change, and
the ‘political’ branches . . . were decidedly more conservative.” Id. at 157.
Indeed, such extended patterns of partisan or coalitional control seem to shape perceptions
of institutional policy slants even after the patterns of control have changed. More than half a
century after Brown v. Board of Education, many remain attached to a view of the Supreme
Court as a heroic protector of minorities and leader of progressive social change. See Michael J.
Klarman, Rethinking the Civil Rights and Civil Liberties Revolutions, 82 VA. L. REV. 1–2, 6–7,
18–23 (1996) (attributing the popular “myth of the heroically countermajoritarian Court,” id. at 6,
largely to Brown); James L. Gibson & Gregory A. Caldeira, Blacks and the United States Supreme Court: Models of Diffuse Support, 54 J. POL. 1120, 1134 (1992) (describing how an increasingly conservative Court has maintained the support of a cohort of African Americans who continue to see Warren Court decisions like Brown as salient); see also Laura Kalman, Border Patrol:
Reflections on the Turn to History in Legal Scholarship, 66 FORDHAM L. REV. 87, 90 (1997)
(“Because of the nation’s experience with the Warren Court, legal liberalism has been linked to
political liberalism since mid-century.”). Federalism, conversely, remains tarnished by its historical association with slavery, Jim Crow, and the empowerment of Southern racists. See Gerken,
Foreword, supra note 20, at 48 (observing that many continue to understand federalism as a
“code-word for letting racists be racist”).
313 Although this model is based on some sentences of Madison’s Federalist 51, it is in other
ways inconsistent with what Madison himself seems to have thought and in other places said. See
Levinson, supra note 142, at 943–44, 959–60.
314 THE FEDERALIST NO. 51, supra note 1, at 319 (James Madison).
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er will make every effort to usurp the power of the states, while states
will fight back to protect and enlarge the scope of their policymaking
domain.
The political logic underlying these predictions of incessant government “empire-building” has never been clear. 315 Madison suggested
that each of the departments of government would somehow come to
possess a “will of its own,” 316 and in particular a self-interested will to
power. But government institutions do not really have wills or interests of their own; their behavior is determined by the interests — officials and democratic-level constituencies — that control them. These
interests do tend to seek power, but they do so in the service of their
preferred policies, without regard to the power of any particular institution. Policy-focused political actors will care about institutional
power only contingently and instrumentally, seeking to increase the
power of institutions they control or that share their policy goals and
to decrease the power of institutions controlled by different interests or
possessing different policy goals. All of this follows directly from passing through power from institutions to interests.
The institutional indifference of policy-seeking political interests
helps explain a familiar set of real-world political dynamics that seem
entirely mysterious on the Madisonian model of power-seeking institutions. Prominent among these is the “separation of parties” observation that competition and conflict between the branches of government
is driven primarily by patterns of partisan control. 317 When Republicans control Congress and a Democratic President sits in the White
House, no one is surprised to see Democrats in the House and Senate
encouraging the President to take unilateral action with respect to environmental regulation, immigration reform, or humanitarian interventions abroad. Nor is anyone surprised when Congress delegates extensively to an executive branch controlled by the same party in order to
better advance a shared policy agenda. Indeed, during periods like the
present, when the two major parties are ideologically coherent and
highly polarized, it is only slightly an exaggeration to say that the
American system of government has not one separation of powers system but two. When control over the branches of the national government is divided by political party and party lines therefore track
branch lines, partisan competition is channeled through the branches,
generating a simulacrum of Madisonian rivalry, competitive ambition,
and checks and balances. When government is unified by political
party, however, intraparty cooperation tends to trump interbranch
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315
316
317
See generally Levinson, supra note 142.
THE FEDERALIST NO. 51, supra note 1, at 318 (James Madison).
See Levinson & Pildes, supra note 29, at 2315.
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competition. This is simply because party affiliation will often —
though certainly not always 318 — serve as a strong predictor of interest-based policy agreement and disagreement at the institutional level.
Something similar is true in the domain of federalism. As Professor
Jessica Bulman-Pozen has elaborated, in the American system of federalism, states serve as sites of partisan mobilization and political contestation that cut across and bear no consistent relationship to the division of power between the states and the national government. 319
Thus, “[p]ut in only slightly caricatured terms, Republican-led states
challenge the federal government when it is controlled by Democrats,
while Democratic-led states challenge the federal government when it
is controlled by Republicans.” 320 Not surprisingly, therefore, the constitutional challenge to the power of Congress to enact the Patient Protection and Affordable Care Act — enacted by a Democratic President
and a Democratic-controlled Congress without a single Republican
vote — was brought by Republican officials in twenty-seven states
without a single Democratic state official signing on. 321 Likewise, of
the twenty-four states that have joined the pending legal challenge to
the EPA’s Clean Power Plan, all but a handful are red. 322 For federal
officials, as well, partisan policy goals typically take precedence over
the power of the national government. While the EPA during the G.
W. Bush Administration was taking no action on climate change,
Democratic members of Congress threw their support behind the regulatory efforts of California, attempting to protect the state’s policies
against federal preemption. 323
Partisan-driven dynamics like this undermine the Madisonian
premises of process federalism. The “political safeguards” perspective
on state-federal relations presumes that states will have some intrinsic
motive to protect and expand their own power by pushing back
against national regulatory incursions — “preserv[ing] the regulatory
authority of state and local institutions to legislate policy choices.” 324
But the ability of state officials to influence national decisionmaking
will not lead to less federal regulation if state officials and their constituents do not want less federal regulation and may in fact prefer
more of it. 325 By the same token, in the absence of any consistent im–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
318 On some issues, cleavages based on geography, economic interests, or other variables will
cut across party lines. See id. at 2324.
319 See Jessica Bulman-Pozen, Partisan Federalism, 127 HARV. L. REV. 1077, 1080 (2014).
320 Id.
321 Id. at 1078–79.
322 See Megan Herzog, Clean Power Plan Litigation Kick-Off, LEGAL PLANET (Nov. 17,
2015), http://legal-planet.org/2015/10/28/clean-power-plan-litigation-kick-off/.
323 See Bulman-Pozen, supra note 319, at 1101–02.
324 Kramer, supra note 153, at 222.
325 See Levinson, supra note 142, at 941.
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perial motivation on the part of federal officials, the problem of federal
aggrandizement that the political safeguards were supposed to solve
also disappears. 326
What the Madisonian vision of the structural constitution has
missed is that the political actors who decide how power will be allocated among government institutions have no intrinsic interest in the
power of government institutions. Officials and democratic-level constituencies are invested in substantive policy outcomes, not institutional authority; their allegiance is to whatever institution can deliver the
goods. Here again, the power of institutions matters only insofar as it
bears on the power of interests.
B. The Interest-Level Stakes of Constitutional Structure
The central organizing principle of the structural constitution is
that power should be divided, diffused, or balanced to prevent the “accumulation of all powers . . . in the same hands” and hence “tyranny.” 327 By dividing power between the states and the national government, among the branches of the national government, and maybe
also within the executive branch and inside administrative agencies,
the constitutional structure of government is supposed to create the
very opposite of tyranny: a political system in which power is spread
broadly among many different hands.
But whose hands? It is one thing to ensure that power is divided
between the President and Congress, but quite another to ensure that
power is divided between political interests: Democrats and Republicans, the rich and the poor, majorities and racial or ethnic minorities,
or the like. Diffusing or balancing power at the level of government
structures and institutions predicts nothing about the consequences for
the distribution of power at the level of these groups.
There is a long history, and in some parts of the world a present reality, of designing the structure of government for the purpose of distributing power among identified political interests. The designers of
the U.S. Constitution had their own ideas about how the structure of
government would work to empower some groups at the expense of
others. But the constitutional design did not prove enduring in this respect: since the Founding, the constitutional structure has served the
purpose of distributing or balancing power among identifiable interests
in American politics and society only contingently and haphazardly,
not by design.
1. Separation of Powers Minus Mixed Government
A time-honored strategy of constitutional design is to balance the
power of competing social and political interests in the structure of
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
326
327
Id. at 942–43.
THE FEDERALIST NO. 47, supra note 1, at 298 (James Madison).
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government. This is the theory of mixed government, based on the
idea that “the major interests in society must be allowed to take part
jointly in the functions of government, so preventing any one interest
from being able to impose its will upon the others.” 328 Historically, the
major social interests have been most commonly identified in terms of
economic status or class: nobles and commons in the British tradition,
occupational guilds in the Florentine Republic, and the like. But the
essential feature of mixed, or “balanced,” government is that the major
social and political interests, however defined, are represented in the
institutional structure of government. The idea is to give each of these
interests sufficient influence over government decisionmaking so that
no one can consistently prevail over the others. 329
The mixed government tradition has been carried through to the
modern world in the form of “consociational” democratic design.330
Conceived as a strategy for bringing peace and stability to societies
deeply divided along ethnic or religious lines, the consociational approach institutionalizes power sharing among the major groups in society through a set of structural arrangements that includes grand coalition cabinets, proportional representation in the legislature, and
mutual veto power over important government decisions. 331 Like
mixed government, consociationalism is supposed to prevent political
domination by a single group, guaranteeing all groups a voice in, and
typically an effective veto over, government actions that affect their
vital interests. As the leading theorist of consociationalism puts it, the
overarching goal “is to share, diffuse, separate, divide, decentralise,
and limit power.” 332
The intellectual tradition of mixed government was deeply influential in shaping the system of separation of powers that became part of
the U.S. constitutional design, but was also a source of great ambivalence for the Framers. Many admired the British system of representation, which had been conceived on the mixed government principle
to empower and balance the three major social orders, or estates of the
realm: the monarchy, the nobility, and the people, who were represented in government, respectively, by the King, the House of Lords, and
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
328
1998).
M. J. C. VILE, CONSTITUTIONALISM AND THE SEPARATION OF POWERS 37 (2d ed.
329 On the intellectual and political history and theory of mixed government, see generally
SCOTT GORDON, CONTROLLING THE STATE (1999).
330 See AREND LIJPHART, DEMOCRACY IN PLURAL SOCIETIES 25 (1977) [hereinafter
PLURAL SOCIETIES]; Arend Lijphart, Consociational Democracy, 21 WORLD POL. 207 (1969).
331 See Sujit Choudhry, Bridging Comparative Politics and Comparative Constitutional Law:
Constitutional Design in Divided Societies, in CONSTITUTIONAL DESIGN FOR DIVIDED
SOCIETIES: INTEGRATION OR ACCOMMODATION? 3, 18–20 (Sujit Choudhry ed., 2008).
332 Arend Lijphart, Consociation: The Model and Its Applications in Divided Societies, in
POLITICAL CO-OPERATION IN DIVIDED SOCIETIES 166, 168 (Desmond Rea ed., 1982).
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the House of Commons. 333 Yet by the time of the Founding, most
Americans had rejected the division of society into stable classes or interests. The hope was that the American republic would level over hereditary class distinctions and replace them with cross-cutting distinctions that were “‘various and unavoidable,’ so much so that they could
not be embodied in the government.” 334 This would make mixed government both impossible and unnecessary.
Nonetheless, the idea that power ought to be divided and balanced
among different components of government did not disappear. Some
Federalists, believing that the country should be run by “the rich and
well born,” 335 and appalled by the prospect of populist democracy controlling the entirety of government, 336 retained an attraction to the
idea of a bicameral legislature with an upper house that represented
property owners or the wealthy. 337
At the same time, Founding-era political thought had fixated on a
very different, and more recent, set of ideas relating to separation of
powers growing out of conflicts between the Crown and Parliament in
seventeenth-century England and theorized by the great “oracle” Montesquieu. 338 Here, the notion was that three qualitatively different
types of government power — legislative, executive, and judicial —
should be assigned to separate government departments, administered
by different personnel. The idea of separating qualitatively different
powers is entirely different from the mixed government idea of creating concurrent or shared powers among competing groups as a barrier
to unilateral decisionmaking or domination. As the British system exemplified, mixed government could be accomplished by representing
the major interests in a single, omnipotent branch, with no need for
separating governmental powers into multiple branches. 339 And presumably, from a mixed government perspective, if important governmental powers were institutionally divided, the relevant interests
would need to be represented in each branch.
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
333
334
335
WOOD, supra note 92, at 199.
Id. at 606–07.
1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 299 (Max Farrand ed.,
1911) (speech of Alexander Hamilton).
336 See KLARMAN, supra note 91; see also WOOD, supra note 92, at 506 – 15.
337 There were some in the Convention who would have preferred to preserve this role for the
Senate. See John Hart Ely, The Apparent Inevitability of Mixed Government, 16 CONST.
COMMENT. 283, 284 (1999); see also AKHIL REED AMAR, AMERICA’S CONSTITUTION: A
BIOGRAPHY 66 (2005) (describing Gouverneur Morris’s arguments for a Senate comprised only
of men with “great personal property” and possessing “the aristocratic spirit”).
338 See THE FEDERALIST NO. 47, supra note 1, at 298–301 (James Madison).
339 See RAKOVE, supra note 84, at 245.
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The U.S. constitutional scheme of separation of powers combines
these two design strategies in a different way. 340 Following Montesquieu’s suggestion, the Constitution assigns each of the three types of
government power to a different branch of government, differentiated
by function and personnel. At the same time, the Constitution sacrifices the supposed benefits of functional separation and differentiation
by giving the branches a set of “checks and balances” over one another, preventing unilateral action and requiring mutual cooperation to
accomplish the tasks of governance. This is the legacy of mixed government, except now substituting functionally differentiated branches
for social and political interests — and thereby sacrificing the entire
point. Indeed, a naïve observer might view this creation as combining
the worst of each constitutional design strategy and missing the point
of both.
Not surprisingly, then, many at the Founding were confused about
the system of government the Constitution was designed to put in
place, and in particular about how the functional purposes of mixed
government could be served once branches had been substituted for
interests. Hamilton worried at the Convention:
If government [is] in the hands of the few, they will tyrannize over
the many. If (in) the hands of the many, they will tyrannize over the
few. It ought to be in the hands of both; and they should be separated. . . . Gentlemen say we need to be rescued from the democracy. But
what the means proposed? A democratic assembly is to be checked by
a democratic senate, and both these by a democratic chief magistrate.
The end will not be answered — the means will not be equal to the
object. 341
Antifederalist critics of the Constitution concurred. As Patrick
Henry put it, “To me it appears that there is no check in that government. The President, senators, and representatives, all, immediately or
mediately, are the choice of the people.” 342 And the Federal Farmer
dismissed “the partitions” between House and Senate as “merely those
of the building in which they sit: there will not be found in them any
of those genuine balances and checks, among the real different inter-
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
340 On the fusion of mixed government and separation of functions in the U.S. constitutional
design, see W. B. GWYN, THE MEANING OF THE SEPARATION OF POWERS (1965); RAKOVE,
supra note 84, at 245–56; VILE, supra note 328, at 36–40; Magill, supra note Error! Bookmark
not defined., at 1161–67.
341 4 THE PAPERS OF ALEXANDER HAMILTON 185–86 (Harold C. Syrett & Jacob E. Cooke
eds., 1962).
342 3 THE DEBATES IN THE SEVERAL STATE CONVENTIONS, ON THE ADOPTION OF
THE FEDERAL CONSTITUTION, AS RECOMMENDED BY THE GENERAL CONVENTION AT
PHILADELPHIA, IN 1787 164 (Jonathan Elliot ed., 2d ed. 1891).
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ests, and efforts of the several classes of men in the community we aim
at.” 343
Unable to comprehend what the Framers had actually accomplished, John Adams charitably concluded that the constitutional design must have meant to create mixed government in accordance with
the traditional model — institutionalizing a class divide between the
aristocracy and the masses by providing separate legislative chambers
for each, higher and lower, mediated by an independent executive
power. 344 Adams was on to something: many Federalists left Philadelphia with the hope that the Senate would play this role in a de facto
way, owing to the indirect election and lengthy terms of senators, who
were also likely to be chosen from among the elite. 345 At least officially, however, the constitutional structure of government was created on
the premise that all of the branches of government would be equally
democratic, representing “the people.” 346 As Gordon Wood describes,
“Americans had retained the forms of the Aristotelian schemes of
[mixed] government but had eliminated the substance, thus divesting
the various parts of the government of their social constituents. Political power was thus disembodied and became essentially homogeneous.” 347
Madison’s protracted attempt to rationalize the constitutional design just highlights how the political logic of mixed government is lost
when branches are substituted for social interests. The threat of political dominance and oppression by an unchecked aristocracy or an uncontrolled mob is converted into the threat of a “legislative department
. . . everywhere extending the sphere of its activity and drawing all
power into its impetuous vortex.” 348 Rivalrous social groups whose
power might be balanced in a well-designed system of mixed government are replaced by “the interior structure” of the national government, which might be “so contriv[ed] . . . as that its several constituent
parts may, by their mutual relations, be the means of keeping each
other in their proper places.” 349 In the manner of class politics, these
branches are to be pitted against one another in a competition for
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
343 Letter from the Federal Farmer No. XI (Jan. 10, 1788), reprinted in 2 THE COMPLETE
ANTI-FEDERALIST ¶ 2.8.146, at 287–88 (Herbert J. Storing ed., 1981).
344 See WOOD, supra note 92, at 567–87.
345 See KLARMAN, supra note 91, at 394. Antifederalists, for their own part, suspected that
the Senate, as well as the presidency, had been designed to ensure that the government would be
controlled by the aristocracy. See id. at 363, 367; see also WOOD, supra note 92, at 516 – 18.
346 See WOOD, supra note 92 at 584 (“[T]he parts of the government had lost their social roots.
All had become more or less equal agents of the people.”). The Anti-Nobility Clause is a textual
marker of this view. See U.S. CONST. art. I, § 9, cl. 8 (“No Title of Nobility shall be granted by
the United States.”).
347 See WOOD, supra note 92 at 604.
348 THE FEDERALIST NO. 48, supra note 1, at 306 (James Madison).
349 THE FEDERALIST NO. 51, supra note 1, at 317–18 (James Madison).
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power, creating a stable equilibrium in which “[a]mbition
. . . counteract[s] ambition.” 350 The hybrid origins of our constitutional
system of separation of powers echo loudly and incoherently in Madison’s much-cited maxim: “The accumulation of all powers, legislative,
executive, and judiciary, in the same hands, whether of one, a few, or
many, and whether hereditary, self-appointed, or elective, may justly
be pronounced the very definition of tyranny.” 351
But Madison clearly understood what the constitutional separation
of powers left out. When it came to “guard[ing] one part of the society
against the injustice of the other part,” 352 dividing and balancing power among the branches of government would not do the job. The primary constitutional safeguard against factional dominance and oppression, Madison explains, is the “multiplicity of interests” in the extended
sphere of a large republic, which will prevent a permanent majority
from seizing control of the national government. 353 “[T]he society itself will be broken into so many parts, interests and classes of citizens,
that the rights of individuals, or of the minority, will be in little danger
from interested combinations of the majority.” 354 The diffusion and
balancing of power, in other words, will take place in society and politics rather than “by introducing into the government . . . a will independent of the society itself.” 355 That latter strategy is the mixed government one of institutionalizing the power of competing interests to
counterbalance the dominance of any single group. 356
Yet the idea of interest balancing did not disappear altogether from
the structural constitution. A residual attempt at interest representation and balancing at the Founding was motivated by the sectional divide over slavery. As Madison reminded his fellow delegates in Philadelphia, “the great division of interests in the United States. . . . did
not lie between the large and small states. It lay between the northern
and southern” and this division came “principally from the effects of
their having, or not having, slaves.” 357 Invoking the basic principle
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
350
351
352
353
354
355
356
357
Id. at 319.
THE FEDERALIST NO. 47, supra note 1, at 298 (James Madison).
THE FEDERALIST NO. 51, supra note 1, at 320 (James Madison).
Id. at 321; see also THE FEDERALIST NO. 10, supra note 1, at 78 (James Madison).
THE FEDERALIST NO. 51, supra note 1, at 321 (James Madison).
Id. at 322.
See RAKOVE, supra note 84, at 282–83.
5 JAMES MADISON, DEBATES ON THE ADOPTION OF THE FEDERAL CONSTITUTION
IN THE CONVENTION HELD AT PHILADELPHIA IN 1787 WITH A DIARY OF THE DEBATES
OF THE CONGRESS OF THE CONFEDERATION 264 (Jonathan Elliot ed., J.B. Lippincott Co., 2d
ed. 1891). Hamilton, among other prominent delegates, agreed: “[T]he only considerable distinction of interests lay between the carrying and non-carrying states.” KLARMAN, supra note 91, at
257; see also MARK A. GRABER, DRED SCOTT AND THE PROBLEM OF CONSTITUTIONAL
EVIL 93 (2006) (quoting 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, 10 (Max
Farrand, ed.) (1911) (Statement of James Madison) (Madison’s statement at the constitutional
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that “every peculiar interest whether in any class of citizens, or any description of states, ought to be secured as far as possible,” Madison
proposed at the Convention that the structure of government be designed to provide Northern and Southern with a mutual “defensive
power” to protect their distinctive sectional interests. 358 Specifically,
Madison suggested that one branch of the national legislature be apportioned according to states’ free populations while the other was apportioned according to total population, with slaves and free persons
counting equally. 359
The structure of Congress that ultimately prevailed in Philadelphia,
in tandem with the presidential election system, was expected to secure
a balance of sectional power in the national government by different
means. Proportional representation in the lower house of Congress
and the Electoral College, bolstered by the Three-Fifths Clause, was
supposed to guarantee that the South would soon have secure control
over the House of Representatives and the presidency, while the greater number of Northern states would dominate the Senate. If everything went as planned, each section would have a mutual veto over
the other, and the South would be empowered to prevent any assault
on slavery. 360
Things did not go as planned. The founding bargain reflected the
shared belief that population growth would be faster in the South than
the North. In fact, however, the population and political power of the
North quickly outpaced that of the South, giving the North a decisive
advantage in the House and eventually the Electoral College. 361 Politically vulnerable to Northern dominance over the national government, Southerners sought other structural safeguards. One possibility
was the Senate. With the enactment of the Missouri Compromise, a
political understanding developed that equal representation of Northern and Southern states in the Senate that currently prevailed would
be preserved.
This “sectional balance” rule became a quasiconstitutional substitute for the original constitutional bargain over
slavery. 362
Much of Southern political thought in the antebellum period was
directed toward concocting further options for institutionalizing the
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convention that “the real difference of interests lay, not between the large & small but between the
N. & Southn. States,” a “line of discrimination” that existed on account of slavery)).
358 KLARMAN, supra note 91, at 257 (quoting 1 THE RECORDS OF THE FEDERAL
CONVENTION OF 1787, 486 (Max Farrand, ed.) (1911) (Statement of James Madison).
359 Id. at 258.
360 See GRABER, supra note 357, at 103.
361 See id. at 126–27.
362 See id. at 140–44; Barry R. Weingast, Political Stability and Civil War: Institutions, Commitment, and American Democracy, in ANALYTIC NARRATIVES 148, 153–55 (Robert H. Bates et
al. eds., 1998).
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power of white Southerners to defend slavery. This was the project of
John C. Calhoun, who laid the groundwork for contemporary
consociationalism with his proposals for “concurrent voice” or “concurrent majority” arrangements. 363 As Calhoun explained:
[T]he adoption of some restriction or limitation which shall so effectually prevent any one interest or combination of interests from obtaining the exclusive control of the government . . . . can be accomplished only in one way, . . . by dividing and distributing the powers of
government [to] give to each division or interest, through its appropriate organ, either a concurrent voice in making and executing the laws
or a veto on their execution. 364
Calhoun and other Southern politicians proposed a number of institutional arrangements along these lines, including a dual executive,
with one President elected by the North and a second by the South,
and a similar sectional balance requirement for Supreme Court Justices. 365
Without these consociational innovations, Calhoun stressed, the
constitutional separation of powers — the “division of government into
separate, and, as it regards each other, independent departments” —
was of no use to vulnerable minorities like Southern slaveholders, because it did nothing to prevent a majority from seizing control of all
the branches of government and exercising absolute power. 366 Nor, in
Calhoun’s view, was Madison’s Federalist 10 solution of fragmented
pluralism likely to prevent the formation of a unified, stable majority
faction. Even “[i]f no one interest be strong enough, of itself, to obtain
[a majority],” Calhoun explained, “a combination will be formed between those whose interests are most alike — each conceding something to the others, until a sufficient number is obtained to make a majority.” 367 In particular, Calhoun believed that political parties would
facilitate the organization of majority coalitions and ensure their ability to control the whole of government. 368 The only way to create a
structural safeguard against the tyranny of an inevitable majority party or coalition would be to “make the several departments the organs
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363 See JESSE T. CARPENTER, THE SOUTH AS A CONSCIOUS MINORITY, 1789–1861: A
STUDY IN POLITICAL THOUGHT , 77–82 (Univ. of S.C. Press 1990) (1930). On the connections
between Calhoun’s concurrent majority and contemporary consociationalism, see JAMES H.
READ, MAJORITY RULE VERSUS CONSENSUS: THE POLITICAL THOUGHT OF JOHN C.
CALHOUN, 199–204 (2009).
364 JOHN C. CALHOUN, A DISQUISITION ON GOVERNMENT AND SELECTIONS FROM
THE DISCOURSE 20 (C. Gordon Post ed., 1953) (1853).
365 See CARPENTER, supra note 363,at 94–95, 98–99.
366 READ, supra note 363, at 14 (quoting CALHOUN, supra note 364, at 27).
367 CALHOUN, supra note 364, at 27.
368 See READ, supra note 363, at 49–50.
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of the distinct interests or portions of the community; and to clothe
each with a negative on the others.” 369
Calhoun had a point. The constitutional system of separation of
powers provides for checks and balances among the branches and requires “concurrent majorities,” such as the dual House and Senate majorities needed to enact legislation. But there is no linkage between
the branches and any of the underlying social and political interests
that might be in need of representation and protection. Nothing prevents the same factional interest from controlling all of the branches
and using them in concert to work its will. The mixed government
tradition, the original constitutional bargain over slavery, and Calhoun’s arguments for converting separation of powers into
consociational democracy all map a road not taken in U.S. constitutional design.
Other constitutional democracies have taken that road in recent
decades, implementing a variety of consociational arrangements that
provide “formal power-sharing along the major axes of social division.” 370 An illuminating, if fleeting, example of consociationalism in
practice comes from South Africa. Seeking to protect the interests of
white elites against domination by a black majority in the transition
from apartheid to democracy, the ruling National Party in South Africa proposed a consociational power-sharing arrangement that included
rotation between white and nonwhite Presidents and a requirement of
consensus amoung the major political parties for important government decisions. While the 1993 Interim Constituion did, in fact, provide for consociational power sharing between the national party and
Nelson Mandela’s African National Congress in a “government of national unity,” 371 an essentially majoritarian democratic system ultimately won out, giving the African National Congress effective political control over the country and leaving white elites a potentially
vulnerable minority. 372
Even in the United States, proposals along similar lines have been
made to bolster the political power of minorities and protect them
against domination by cohesive majorities that fail to take their interests into account. Drawing on consociational theory, Lani Guinier has
advocated a system of cumulative voting that would empower minori–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
369
370
CALHOUN, supra note 364, at 27.
Samuel Issacharoff, Managing Conflict Through Democracy, in 33 RIGHTS IN DIVIDED
SOCIETIES (Colin Harvey & Alex Schwartz, eds., 2012) 34. See generally SAMUEL
ISSACHAROFF ET AL., THE LAW OF DEMOCRACY: LEGAL STRUCTURE OF THE POLITICAL
PROCESS 1273–79 (5th ed. 2016) (providing an overview of consociational arrangements).
371 Christina Murray & Richard Simeon, Recognition Without Empowerment: Minorities in a
Democratic South Africa, in CONSTITUTIONAL DESIGN FOR DIVIDED SOCIETIES:
INTEGRATION OR ACCOMODATION?, supra note 331, at 409, 425.
372 See READ, supra note 364, at 216.
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ty groups to vote strategically to elect some of their candidates of
choice who would then enact or block legislation of critical importance
to their constituency. 373 Guinier has further considered the alternative
of vesting minorities with a veto over legislation bearing upon “critical
minority issues.” 374 More recently, concerns about the disproportionate
influence of concentrated wealth has motivated scholars to return to
the mixed government tradition to explore how the separation of powers might be used to prevent a contemporary oligarchy from dominating the rest of society. 375 As these scholars recognize, the modern assumption “that there is no connection between intra-branch interaction
. . . and the dominance of a particular group in society” makes it difficult to conceive of how the separation of powers could be used to ensure that power is diffused, checked, and balanced among different
groups. 376 The problem as these theorists conceive it is that economic
elites have managed to capture all of the branches of government, as
well as parties and other major political institutions, leaving no locus
of countervailing power that could be used to represent majoritarian
or other interests. 377 This diagnosis might suggest a quite literal return
to the original model of mixed government, for example, by redesigning one of the chambers of Congress to represent the interests of the
nonwealthy. 378
If a proposal like that seems fanciful, it is because the U.S. system
of separation of powers is no longer conceived as a mechanism for representing specific social and political interests or balancing power
among them. To the limited extent the separation of powers has
played that role over the course of constitutional history, it has done so
accidentally or opportunistically, when the political stars happened for
some period to align.
[Sections II.B.2-3 omitted]
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
373
374
375
See LANI GUINIER, THE TYRANNY OF THE MAJORITY 107–08 (1994).
Id. at 108.
See Andrias, supra note Error! Bookmark not defined., at 429–35; Sitaraman, supra
note Error! Bookmark not defined., at 61–67.
376 Andrias, supra note Error! Bookmark not defined., at 429.
377 See id. at 422 (“Wealth influences not only Congress and the President, but also the mechanisms scholars argue have replaced Madisonian checks and balances — i.e., political parties and
internal executive branch checks.”).
378 See Sitaraman, supra note Error! Bookmark not defined., at 62–63 (suggesting the
possibility of capping the wealth of candidates for the House of Representatives).
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III. Beyond Constitutional Structure
If constitutional structure is at best a blunt, or blind, instrument for
distributing power among political interests, a number of other areas of
public law are more centrally concerned with that project.
[Part III.A omitted]
B. Electoral Power
Democracy comes with many justifications, sounding in political
legitimacy, epistemic quality, and expressive equality of citizenship.
But perhaps the most compelling is that democracy is a mechanism for
distributing power more broadly and equally among groups in society.
Under nondemocratic systems of monarchy, oligarchy, and dictatorship, government can more easily ignore the political preferences of
large segments of society. Not surprisingly, then, the rise of mass democracy in many parts of the world has been spurred by disenfranchised groups whose interests were being ignored by the elites in control of state power. 474
Once democracy is up and running, the ideal of equalizing political
power continues to serve as a normative touchstone in debates about
how electoral rules and institutional structures should be designed.
Precisely what equality of political power should be understood to
mean and how it should be operationalized are notoriously difficult
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
471
472
See Elhauge, supra note 467, at 48–59.
See Nicholas Bagley & Richard L. Revesz, Centralized Oversight of the Regulatory State,
106 Colum. L. Rev. 1260, 1286 (2006) (quoting Christopher C. DeMuth & Douglas H. Ginsburg,
White House Review of Agency Rulemaking, 99 Harv. L. Rev. 1075, 1080 (1986)) (criticizing the
views of conservatives who support anti-capture review of “overzealous” agency regulators).
473 See, e.g., City of Richmond v. J.A. Croson Co., 488 U.S. 469, 495–96 (1989) (plurality opinion) (citing John Hart Ely, The Constitutionality of Reverse Racial Discrimination, 41 U. Chi. L.
Rev. 723, 739 n.58 (1974)) (finding constitutionally suspect the city’s minority set-aside program
because “blacks constitute approximately 50% of the population” and “[f]ive of the nine seats on
the city council are held by blacks”)); Romer v. Evans, 517 U.S. 620, 648 (1996) (Scalia, J., dissenting) (referring to gays and lesbians as “a geographically concentrated and politically powerful minority” working to undermine “the effort by the majority of [Colorado] citizens to preserve its
view of sexual morality”).
474 See Daron Acemoglu & James A. Robinson, Economic Origins of Dictatorship and Democracy 24–25(2006).
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and contested questions. 475 But many democratic theorists and ordinary citizens would sign on to the intuitive ideal “that democratic institutions should provide citizens with equal procedural opportunities
to influence political decisions (or, more briefly, with equal power over
outcomes).” 476
At a minimum, democratic institutions might be designed to
prevent one group in society from unfairly dominating another. Thus,
Madison described the regulation of suffrage as a “task of peculiar delicacy”: “Allow the right exclusively to property, and the rights of persons may be oppressed. . . . Extend it equally to all, and the rights of
property, or the claims of justice, may be overruled by a majority
without property . . . .” 477 Madison and other Federalists hoped that
the constitutional structure of government would avoid both horns of
this dilemma. Although the national government in all of its branches
would be formally responsive to democratic majorities, Madison hoped
that large federal election districts for the House and the indirect election of Senatorsand the President would select for the kind of representatives who would “possess most wisdom to discern, and most virtue to pursue, the common good of the society” 478 and allow these
representatives to “refine and enlarge the public views” to filter out
“partial considerations” and “discern the true interest of their country.” 479 In other words, representatives would tend to be elites with
sufficient insulation from majority will to protect the wealthy against
expropriation and redistribution. Such a system of representative democracy might replicate the interest-balancing benefits of mixed or
consociational government.
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
475 See generally Charles R. Beitz, Political Equality: An Essay in Democratic Theory (1989);
Ronald Dworkin, Sovereign Virtue: The Theory and Practice of Equality ch. 4 (2000); Anne Phillips, The Politics of Presence 27–38 (1995).
476 See Beitz, supra note 475, at 4 (emphasis omitted) (describing this view of political equality
as “the most widely held,” though proceeding to criticize it as too simple, id. at 4–5); see also Benjamin I. Sachs, The Unbundled Union: Politics Without Collective Bargaining, 123 Yale L.J. 148,
159 (2013) (“Political equality is a core feature of democratic governance. While the definition
and appropriate scope of such equality is contested, there is general agreement that citizens in a
democracy ought to have an approximately equal opportunity to influence the political process.”).
Not all political theorists endorse equality of political power. A competing, antidemocratic tradition, running from Plato to Schumpeter to contemporary proponents of bureaucratic expertise and
judicial wisdom, calls for allocating political power to those with the most ability to make good
decisions. As has been noted, many of the Framers of the U.S. Constitution were similarly
commited to elite rule. See Klarman, supra note 91, at 363, 367.
477 James Madison 5 Debates on the Adoption of the Federal Constitution in the Convention
Held at Philadelphia in 1787 with a Diary of the Debates of the Congress of the Confederation
580 (Jonathan Elliot ed., Philadelphia, J.P. Lippincott & Co., 2d ed., 1891).
478 The Federalist No. 57, at 348 (James Madison) (Clinton Rossiter ed., 1961).
479 The Federalist No. 10, supra note 28, at 76 (James Madison); see also Sunstein, supra note
131, at 41–42.
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More broadly, electoral empowerment and consociational democracy can both be viewed as “institutional-design mechanism[s] for
building in commitments to fair representation and political equality”
for minority groups. 480 From this perspective, the structure of government decisionmaking institutions and the design of electoral institutions are substitute tools for distributing or balancing political power
among groups in society. 481
Of course, for many political actors in the real world, the paramount concern is not balancing or equalizing power, but getting as
much of it as possible. Throughout the history of U.S. democracy, politicians, parties, and political coalitions have always sought to design
or manipulate democratic institutions and electoral rules in such a way
as to augment or entrench their hold on power. One straightforward
strategy for doing so is to shift the composition of the electorate by enfranchising one’s own supporters or disenfranchising one’s opponents.
Thus, after the Civil War, Congressional Republicans sought to enfranchise black voters in the South, in part for the purpose of ensuring
the electoral dominance of the Republican Party. 482 The end of Reconstruction allowed Southern Democrats to redeem the political supremacy of their party by using poll taxes, literacy tests, force, and
fraud to disenfranchise nearly all black voters (and many poor
whites). 483 In recent elections, voter identification laws and other procedural restrictions on voting have been supported or opposed on the
484
basis of their predictable racial and partisan consequences.
Electoral districting is another useful device for manipulating the
effective votig power of different constituencies. At-large and multimember districting schemes, as well as gerrymandered single-member
districts, were additional tools used by Southern Democrats to sup485
press black voting power and maintain political dominance. In contemporary politics, partisan gerrymanders allow narrowly or temporar–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
480 Richard H. Pildes, Foreword: The Constitutionalization of Democratic Politics, 118 Harv.
L. Rev. 28, 86 (2004).
481 See Daryl J. Levinson, Rights and Votes, 121 Yale L.J. 1286 (2012) (treating the two processes as interchangeable); see also Levinson & Pildes, supra note 29, at 2385 (emphasizing that
the effects of political parties on the workings of the structural constitution create an important
linkage between the law of democracy and the separation of powers).
482 See Alexander Keyssar, The Right to Vote 86–93 (2000); Klarman, supra note 26, at 28–29.
483 See J. Morgan Kousser, The Shaping of Southern Politics: Suffrage Restriction and the Establishment of the One-Party South, 1880–1910 (1974).
484 See Nicholas O. Stephanopoulos, Elections and Alignment, 114 Colum. L. Rev. 283, 324–30
(2014) (describing the new array of franchise restrictions and their partisan consequences); Samuel
Issacharoff, Ballot Bedlam, 64 Duke L.J. 1363, 1371–76 (2015); Crawford v. Marion Cty. Election
Bd., 553 U.S. 181, 203 (2008) (recognizing that “partisan considerations may have played a significant role” in Indiana’s decision to enact a voter identification law).
485 See Samuel Issacharoff & Richard H. Pildes, Politics as Markets: Partisan Lockups of the
Democratic Process, 50 Stan. L. Rev. 643, 700–03 (1998).
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ily prevailing parties to establish disproportionate and durable legisla486
Campaign finance regulation is a further means of
tive majorities.
securing disproportionate electoral power for incumbent parties and
officeholders, as well as for corporations and wealthy donors at the ex487
pense of less-capitalized constituencies.
The constitutional and statutory law of democracy has imposed
some limitations on the use of all of these tactics. Courts had invalidated (or upheld Congress’s authority to invalidate)poll taxes, literacy
488
The
tests, and other mechanisms of minority disenfranchisement.
judicially imposed rule of one person, one vote has done away with the
malapportioned electoral districts that once inflated the political power
489
of rural voters and protected incumbent politicians. Gerrymandering
districts for the purpose of ensuring minority representation is to some
extent required by the Voting Rights Act 490 but also limited by the
491
The Supreme Court has deemed partisan
Equal Protection Clause.
gerrymandering a constitutional problem, even if not one that is easily
492
And the Court has rejected most
amendable to a judicial solution.
limitations on campaign spending outside of direct contributions to
493
candidates as violations of free speech.
As election law scholars have emphasized, these and other judicial
incursions into the “political thicket” 494 have conspicuously lacked any
“unified vision” or “organizing principle.” 495 Courts have tended to focus on enforcing individual rights, marginalizing systemic concerns
about how electoral rules and institutions affect the power of political
496
In at least some areas, however, courts
interests and social groups.
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
486 See Stephanopoulos, supra note 484, at 286, 348–49 (presenting empirical evidence on the
efficacy of partisan gerrymandering).
487 See Michael J. Klarman, Majoritarian Judicial Review: The Entrenchment Problem, 85
Geo. L.J. 491, 522 – 23 (1997); Pildes, supra note 480, at 130–53.
488 See, e.g., Harper v. Va. Bd. of Elections, 383 U.S. 663 (1966) (striking down the poll tax);
Katzenbach v. Morgan, 384 U.S. 641 (1966) (upholding Congress’s power to ban literacy tests);
Oregon v. Mitchell, 400 U.S. 112 (1970) (reaffirming Congress’s ban on literacy tests); Guinn v.
United States, 238 U.S. 347 (1915) (invalidating a grandfather clause that disenfranchised virtually all blacks in the state).
489 See, e.g., Reynolds v. Sims, 377 U.S. 533 (1964); Wesberry v. Sanders, 376 U.S. 1 (1964).
490 See Voting Rights Act, 52 U.S.C.A. § 10301 (2016).
491 See Shaw v. Reno, 509 U.S. 630 (1993).
492 See Vieth v. Jubelirer, 541 U.S. 267 (2004).
493 See, e.g., McCutcheon v. FEC, 134 S. Ct. 1434 (2014); Citizens United v. FEC, 558 U.S. 310
(2010).
494 Colegrove v. Green, 328 U.S. 549, 556 (1946).
495 Pildes, supra note 480, at 39; see also Issacharoff & Pildes, supra note 485, at 646 (“[T]he
Court’s electoral jurisprudence lacks any underlying vision of democratic politics that is normatively robust or realistically sophisticated.”).
496 See Issacharoff & Pildes, supra note 485, at 644–46, 717. But cf. Pildes, supra note 480, at
40–41, 46 (seeing courts as “enforcing structural values concerning the democratic order as a
whole, albeit erratically and not always self-consciously”).
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have been attentive to the systemic distribution of democratic power.
One person, one vote doctrine was motivated by the perceived need to
prevent the “systematic frustration of the will of a majority of the elec497
The Court has also been contorate” by malapportioned districts.
cerned about protecting democratic majorities against incumbent officials seeking to entrench themselves in office even after having lost
majority support. Expressing skepticism of campaign finance regulation, Justice Scalia has warned that “[t]he first instinct of power is the
retention of power, and, under a Constitution that requires periodic
elections, that is best achieved by the suppression of election-time
498
In the context of political gerrymandering, the Court has
speech.”
identified the “consistent[] degrad[ation]” of a party’s “influence on the
political process” as a constitutional problem. 499
Moreover, in at least one area of election law the goal of redistributing political power has always been front and center: the enfranchisement and political empowerment of previously excluded black
voters. That project began with the imperative that minority voters
be permitted to register and cast ballots. Once this right to “participation” had been established, 500 courts, together with Congress and the
Justice Department, took up the task of ensuring that minority votes
were being fairly aggregated and minority groups “effective[ly] represent[ed].” 501 This required dismantling electoral schemes, such as atlarge elections that “diluted” the power of minority groups, and mandating the creation of majority-minority districts to enable these
groups to elect candidates of their choice. 502 Voting rights enforcement
along these and other dimensions has gone a long way toward closing
the gap between black and white voting rates and legislative representation. 503 In the context of race, the law of democracy has served cen-
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
497 See Lucas v. Forty-Fourth Gen. Assembly, 377 U.S. 713, 753–54 (1964) (Stewart, J., dissenting); see also Klarman, supra note 487, at 532.
498 McConnell v. FEC, 540 U.S. 93, 263 (2003) (Scalia, J., concurring in part and dissenting in
part).
499 Davis v. Bandemer, 478 U.S. 109, 132 (1986) (plurality opinion). See also Vieth v. Jubelirer,
541 U.S. 267, 361 (2004) (Breyer, J., dissenting) (recognizing “[t]he democratic harm of unjustified
entrenchment,” which results from a redistricting plan that awards a party receiving a minority of
statewide votes a majority of legislative seats).
500 See Pamela S. Karlan, The Rights to Vote: Some Pessimism About Formalism, 71 Tex. L.
Rev. 1705, 1709–12 (1993).
501 Richard H. Pildes, The Politics of Race, 108 Harv. L. Rev. 1359, 1363 (1995)(reviewing
Quiet Revolution in the South: The Impact of the Voting Rights Act, 1965–1990 (Chandler Davidson & Bernard Grofman eds., 1994)).
502 See id. at 1363 – 65; Karlan, supra note 500, at 1712–16.
503 See generally Quiet Revolution in the South, supra note 501 (describing the impact of the
Voting Rights Act).
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trally and self-consciously as “a device for regulating, rationing, and
apportioning political power among . . . groups.” 504
Many scholars would embrace that mission for the law of democracy more generally. 505 Some would direct election law toward ensuring
that electoral majorities hold governing power. Michael Klarman, for
instance, has advanced a framework for “anti-entrenchment review” of
electoral rules and arrangements to guard against incumbent officials
or electoral coalitions seeking to retain their hold on power even after
506
Also focused on majority control,
having lost majority support.
Nicholas Stephanopoulos would center election law on the “alignment”
principle that representatives should share the partisan and policy
preferences of their median constituent and that “the balance of power
in the legislature [should] reflect the balance of opinion in the electorate.” 507 Samuel Issacharoff and Richard Pildes emphasize the importance of free and fair electoral political competition and the corresponding need to guard against “lockups” by officials, parties, and
other powerholders seeking to suppress challengers by exercising mo508
nopoly power. Also concerned about redistributing power among political actors, Lani Guinier has developed a pluralist, “Madisonian”
model that would allow racial and other minorities to “share in power”
with other groups and secure a fair share of political outcomes reflecting their interests. 509 The least common denominator among these
and other scholars is that “the right to vote is meaningful in large part
because it affords groups of persons the opportunity to join their voices to exert force on the political process,” and that the focus of the law
of democracy should be on “the ability of groups of voters to exercise
political influence.” 510
Reorienting the law of democracy around the distribution of power
in this way would require a major leap from where the Court currently stands in a number of respects. To the extent election law has been
concerned with the empowerment of social groups in this area, the
near-exclusive focus has been on racial and ethnic minorities. 511 The
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
504 Holder v. Hall, 512 U.S. 874, 893 (1994) (Thomas, J., concurring in the judgment) (describing the Voting Rights Act in particular).
505 See generally Samuel Issacharoff & Pamela S. Karlan, Groups, Politics, and the Equal Protection Clause, 58 U. Miami L. Rev. 35, 42 (2003) (elaborating on a “group-disadvantaging conception of political equality”).
506 See Klarman, supra note 487, 497–502.
507 Stephanopoulos, supra note 484, at 310; see also id. at 288–89.
508 See Issacharoff & Pildes, supra note 485, at 648–50.
509 See Lani Guinier, The Tyranny of the Majority 4–6, 10 (1994). In Guinier’s view of political equality, neither majorities nor minorities should be permitted to exercise “disproportionate
power.” Id. at 92–93.
510 Adam B. Cox, The Temporal Dimension of Voting Rights, 93 Va. L. Rev. 361, 362 (2007).
511 At least part of the explanation, of course, is that the Voting Rights Act, the Fifteenth
Amendment, and much of Equal Protection jurisprudence are focused on race.
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possibility of protecting other groups or balancing power along other
dimensions of interest has barely been explored. Even the highly salient problem of partisan entrenchment has presented a seemingly insurmountable challenge: despite the increasing partisan bias of congressional districting plans and the correspondingly decreasing
congruence between House members’ voting records and their constituents’ policy preferences, the Court has refused to invalidate even the
most blatantly partisan gerrymanders. 512 And other salient power imbalances have been ignored altogether — or worse. Campaign spending is arguably the most flagrant source of inequality in the American
political system, inasmuch as it permits business interests and wealthy
individuals to exert exorbitantly disproportionate political influence. 513
But the Court has insisted for decades that political spending is a constitutionally protected form of speech and has definitively rejected “the
concept that government may restrict the speech of some elements of
our society in order to enhance the relative voice of others.” 514 That
principle stands in direct opposition to the project of balancing electoral power.
Even in the context of race, election law jurisprudence has been
more concerned with descriptive representation — electing black or
Hispanic representatives — than with bolstering the substantive representation of minority group interests. In fact, descriptive representation for racial minorities has sometimes come at the cost of substantive
representation for minority interests, as when the creation of minoritycontrolled districts has led to the election of more Republicans. 515 The
law of democracy has been more concerned with “who is present in the
legislative assemblies” than with “more urgent questions of what the
representatives actually do.” 516 This “politics of presence” speaks to a
different set of concerns than empowering groups in the sense of protecting and advancing their substantive policy interests. 517
The distinction between descriptive and substantive representation
points to a more fundamental limit on election law as a project of redistributing political power. The law of democracy’s concern with the
distribution of power among groups has been limited to elections and
representation, stopping short of government decisionmaking and policy influence. Guinier has criticized the myopic focus of election law on
the election of minority representatives as mere “tokenism” given the
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
512
513
514
515
516
517
See Stephanopoulos, supra note 484, at 290–91.
See generally Lessig, supra note 36.
Buckley v. Valeo, 424 U.S. 1, 48–49 (1976) (per curiam).
See Stephanopoulos, supra note 484, at 354–55.
Phillips, supra note 475, at 3.
The two projects can be linked, to the extent that minority representatives do, in fact, more
effectively represent some set of policy interests shared by the minority group. See id. at 12–13.
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reality that a handful of minority legislators can be routinely outvoted
by legislative majorities who do not share their interests. 518 Other
scholars have likewise noticed that the Court has turned away from a
theory of “protective democracy” that would prioritize the ability of
minority groups to influence actual policy outcomes, 519 and has given
short shrift to the “voting as governance” 520 concerns such as “whether
there is a significant lack of responsiveness on the part of elected officials to the particularized needs of the members of the minority
group.” 521 The problem is that electing some number of minority representatives is no guarantee that a group will exercise meaningful political power in the sense of influencing government decisionmaking
and policy outcomes.
As Nick Stephanopoulos puts the point:
If blacks seem not to be satisfied with (mostly) uninhibited access
to the polls and (close to) proportional representation, this is because
they should not be content with these achievements. What really matters in a democracy is getting policies enacted that correspond to people’s views. And on this front, blacks still have a long way to go.
Their opinions — on vital issues like crime, welfare, and housing —
are too often ignored by elected officials when they conflict with
whites’ preferences. 522
The same is true of other groups, as well. As Stephanopoulos and
others have documented, glaring discrepancies between formal political representation and functional policy responsiveness exist not just
for African Americans, but also for Hispanics, women, and the poor. 523
Most strikingly, a number of recent studies have found that “economic
elites” and “business interests” are the groups with the most influence
over government decisionmaking, whereas “mass-based interest
groups” and “average citizens” have “little or no” actual influence over
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
518 Guinier, supra note 373, at 42–43. This leads her to propose cumulative voting for
decisionmaking in legislative bodies as a means to empower minority groups to enact or block
legislation of critical importance to them. See id. at 107–08. Guinier also considers the possibility
of imposing supermajority voting requirements or a minority veto for “critical minority issues.”
Id. at 108.
519 See James A. Gardner, Liberty, Community and the Constitutional Structure of Political
Influence: A Reconsideration of the Right to Vote, 145 U. Pa. L. Rev. 893, 927–29 (1997).
520 Karlan, supra note 500, at 1716.
521 S. Rep. No. 97-417, at 29 (1982), as reprinted in 1982 U.S.C.C.A.N. 177, 207; see also
Karlan, supra note 500, at 1716–19 (discussing legislatures’ lack of responsiveness to minorities’
particularized governance concerns).
522 Nicholas Stephanopoulos, The False Promise of Black Political Representation, The Atlantic
(June
11,
2015),
http://www.theatlantic.com/politics/archive/2015/06/black-politicalrepresentation-power/395594/.
523 See Nicholas O. Stephanopoulos, Political Powerlessness, 90 N.Y.U. L. Rev. 1527, 1572–
1601 (2015).
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policy outcomes. 524 If that finding is correct, 525 the most fundamental
ambition of democracy — to ensure that government is generally responsive to the interests of most citizens — appears to be going unrealized in this country. 526
Inasmuch as the point of democracy is to improve “the welfare of
citizens by making policies responsive to their interests,” 527 one might
think the apparent failure of voting and representation to generate
greater policy responsiveness for major groups of these citizens would
be a matter of central concern for the law of democracy. Yet even the
most far-reaching reformers in the field seem resigned to the view that
a thoroughgoing concern with the distribution of policymaking power
is, as Stephanopoulos elsewhere concludes, “too ambitious a goal for
election law to achieve.”528 As the discussion to follow will emphasize, 529 the electoral process is just one channel of political influence
among many in the U.S. system of government and not always the
most important in predicting which interests will ultimately prevail.
As a consequence, the amount of political power that can be redistributed through electoral rules and institutions is inherently limited. If
the democratic ideal is to equalize political power, the reach of the law
of democracy will inevitably exceed its grasp.
C. Rights and Political Power
Constitutional rights are typically viewed as a counterpoint to power. In the classical liberal tradition, rights are supposed to delineate a
private sphere beyond the reach of state power. More broadly, rights
are supposed to place limits on what political power can be used to accomplish, standing in the way of majority will or democratic
decisionmaking (and thus giving rise to “countermajoritarian” kinds of
difficulties). And disciplinary boundaries divide political and constitutional theorists, who tend to “think in terms of rights and equality,”
from political scientists and election law scholars, who are interested in
“the organization of power.” 530
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
524 See Martin Gilens & Benjamin I. Page, Testing Theories of American Politics: Elites, Interest Groups, and Average Citizens, 12 Persp. on Pol. 564, 565 (2014).
525 For an overview of the most significant criticisms to date, see Sean McElwee, To Influence
Policy, You Have to Be More than Rich, Wash. Monthly (Feb. 16, 2016, 11:25 AM),
http://washingtonmonthly.com/2016/02/16/to-influence-policy-you-have-to-be-more-than-rich/.
526 See Gilens & Page, supra note 524, at 577 (concluding that “America’s claims to being a
democratic society are seriously threatened”).
527 Pildes, supra note 480, at 42.
528 Stephanopoulos, supra note 484, at 312 (asserting that “policy outcome alignment” is “too
ambitious” and advocating for elections that maximize “policy preference alignment” as a substitute).
529 See infra section III.D, notes 561–600 and accompanying text.
530 Pildes, supra note 480, at 40.
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But rights can also be understood as of a piece with political power. 531 If the point of power is to enable groups to protect and advance
their interests by controlling governance outcomes, then public law
might go about the project of managing power in two basic ways.
One is to use rights to protect those interests directly, by blocking unfavorable outcomes or mandating favorable ones. Alternatively, public
law might accomplish the same thing indirectly, by allocating influence
over political decisionmaking processes in such a way as to enable
groups to protect their own interests — whether through structure,
voting, or other mechanisms.
The fungibility of rights and political power was a crucial premise
of the U.S. constitutional design. Concerned with protecting property
owners and other minorities against majoritarian oppression, but convinced that constitutional rights would create merely parchment barriers against majority will, 532 Madison and his fellow Framers attempted to design a structure of government that would tilt the political
playing field in favor of these vulnerable groups. 533 By shifting power
to a national government that would be more difficult for a unified
faction to capture and by insulating senators and the President from
direct democratic responsiveness to popular majorities, Madison and
his colleagues hoped that constitutional structure would do the work of
rights in protecting the fundamental interests of minorities. 534 Viewed
in this way, “the [structural] Constitution is itself, in every rational
sense, and to every useful purpose, A BILL OF RIGHTS.” 535
Contemporary constitutional law has in some contexts followed
Madison in looking to political power as a substitute for rights. Constitutional structure might play this role. For example, scholars have
suggested that judicial enforcement of the separation of powers might
be a better method of constraining executive power and protecting
against abuses than direct judicial enforcement of rights. 536 So might
political power through voting. Thus, the Supreme Court has viewed
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
531 See generally Levinson, supra note 380 (viewing rights and votes as comparable tools for
protecting minorities and other vulnerable groups).
532 See supra section I.D.2, notes Error! Bookmark not defined.–289 and accompanying
text.
533 See Mark A. Graber, Enumeration and Other Constitutional Strategies for Protecting
Rights: The View from 1787/1791, 9 U. Pa. J. Const. L. 357, 359–60 (2007).
534 See id. at 362–66.
535 The Federalist No. 84, at 514 (Alexander Hamilton) (Clinton Rossiter ed., 2003). Some
decades after ratification, Madison continued to believe that “[t]he only effectual safeguard to the
rights of the minority, must be laid in such a basis and structure of the Government itself, as may
afford, in a certain degree, directly or indirectly, a defensive authority in behalf of a minority having right on its side.” James Madison, Speech, Virginia Convention of 1829 (Dec. 2, 1829), in Selected Writings of James Madison 355 (Ralph Ketcham ed., 2006).
536 See Issacharoff & Pildes, supra note 298, at 5–6, 43–46 (exploring an institutional process
approach to rights during wartime).
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voting rights as special because they are “preservative of other basic
civil and political rights.” 537 Martin Luther King made the same point
more eloquently when he proclamed, “Give us the ballot, and we will
no longer have to worry the federal government about our basic
rights.”538
The possibility of political power substituting for rights finds its
mirror image in Carolene Products (or “political process”) theory,
which calls for the judicial enforcement of rights to protect “politically
powerless” groups. 539 In the first instance, the Carolene Products approach calls for courts to rearrange the democratic process in order to
fully empower disenfranchised groups. Failing that, however, courts
are then charged with replicating the policy outcomes that would have
resulted from an idealized process in which all groups exercised their
fair share of power. Political process theory has provided a straightforward justification for protecting the rights of formally disenfranchised groups, most prominently blacks in the Jim Crow South. 540 It
has also been used to justify rights protections for groups that are formally enfranchised but lack adequate political power for other reasons
— including racial minorities on an ongoing basis, as well as women. 541 In its equal protection cases, the Court has pointed to political
powerlessness as one of the primary criteria for determining whether a
group is a suspect class and therefore entitled to special protection
against discrimination and disadvantage. 542 Pursing that line of argument, gay rights litigation has featured political scientists offering
expert testimony on the political power of gays and lesbians and debates among judges and Justices about whether this group is “politically powerless” 543 or, quite the opposite, “possess[es] political power
much greater than their numbers.” 544
Like any approach to distributing power through public law, political process theory faces the descriptive challenge of assessing the
amount of power different groups possess, as well as the normative
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
537
538
Reynolds v. Sims, 377 U.S. 533, 562 (1964).
Martin Luther King, Jr., Give Us the Ballot, Address Delivered at the Prayer Pilgrimage
for Freedom (May 17, 1957), in 4 The Papers of Martin Luther King, Jr. 208, 210 (Clayborne Carson et al. eds., 2000).
539 See United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938); Ely, supra note 31.
540 See Michael J. Klarman, The Puzzling Resistance to Political Process Theory, 77 Va. L.
Rev. 747, 750–51 (1991).
541 Id. at 828–29.
542 See, e.g., San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 28 (1973) (asking whether
a group is “relegated to such a position of political powerlessness as to command extraordinary
protection from the majoritarian political process”).
543 See Jane S. Schacter, Ely at the Altar: Political Process Theory Through the Lens of the
Marriage Debate, 109 Mich. L. Rev. 1363, 1383–90 (2011); see also Kenji Yoshino, Speak Now
142–54 (2015) (describing the Proposition 8 litigation).
544 Romer v. Evans, 517 U.S. 620, 646 (1996) (Scalia, J., dissenting).
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challenge of deciding how much power these groups should possess.
To this point, constitutional law has made not made a great deal of
progress on either front.
As generations of constitutional theorists have emphasized, political
process presupposes a substantive conception of ideally wellfunctioning democracy. 545 Given its focus on racial and other minority
groups, political process review must operate against a background
theory of democracy in which majorities are not always supposed to
prevail; one in which certain minorities are supposed to exercise meaningful political power. 546 The most straightforward version of such a
theory is Madisonian pluralism, in which numerous interests or factions form shifting coalitions to achieve political victories, and no coherent, stable majority dominates. 547 In a system of pluralist political
competition, among the process failures that courts might seek to correct would be the inability of certain groups to enter into winning coalitions with other groups in order to obtain their “fair share” of political victories on account of illegitimate structural barriers. 548
Unfortunately, courts and theorists have made little headway in
identifying these structural barriers and the groups they distinctively
afflict. The Court’s original focus of attention on “prejudice against
discrete and insular minorities,”549 such as racial and religious minorities, suggested that easily identifiable social groups segregated from the
mainstream of American society would suffer distinctive political disadvantages. But upon reflection, there is little reason to believe that
discreteness or insularity will tend to reduce political power. To the
contrary, those characteristics may be systematically advantageous, by
reducing the costs of collective action, making the most of political geography, and providing incentives to group members to choose political “voice” over “exit.” 550 Psychological or sociological theories of
“prejudice,” of the sort prominently advanced by John Hart Ely, have
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
545 This point is often offered as a criticism of the Court’s attempt to police the political process while avoiding the imposition of substantive value judgments. Value judgments about how
democratic politics ought to work seem unavoidable. See, e.g., Paul Brest, The Substance of Process, 42 Ohio St. L.J. 131 (1981); Laurence H. Tribe, The Puzzling Persistence of Process-Based
Constitutional Theories, 89 Yale L.J. 1063, 1073–79 (1980).
546 See Bruce A. Ackerman, Beyond Carolene Products, 98 Harv. L. Rev. 713, 719 (1985).
547 See Ely, supra note 31, at 152–53 (referring to the “pluralist’s bazaar” of politics); Ackerman, supra note 546, at 719–20; Stephanopoulos, supra note 523, at 1545–49.
548 Ackerman, supra note 546, at 720.
549 See United States v. Carolene Prods. Co., 304 U.S. 144, 153 n.4 (1938) (“[P]rejudice against
discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which
may call for a correspondingly more searching judicial inquiry.”); see also Ely, supra note 31, at
135–79 (arguing for judicial protection of minority groups whose interests are discounted by the
majority on account of psychological or sociological distance).
550 Ackerman, supra note 546, at 722–31.
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been widely panned as theoretically and empirically unconvincing. 551
Left with little theoretical direction, courts have based assessments of
political power(lessness) on an inconsistent grab bag of criteria — including groups’ numerical size, financial resources, access to the ballot,
levels of descriptive representation, and ability to secure antidiscrimination legislation — but without any explanation for why these are the
relevant variables or how they should be weighed against one another. 552
Without some better understanding of how political power
should be measured and how much of it various groups should get, it
is hard to know which groups should receive special judicial solicitude.
Under Equal Protection doctrine, racial minorities, women, and more
recently gays and lesbians have been the primary beneficiaries of
rights protection, and religious groups have also received some measure of antidiscrimination protection under the First Amendment. But
it is not at all clear that these groups are distinctively being denied a
fair share of political power. In a recent study empirically examining
the extent to which different groups’ policy preferences influence policy outcomes on the national and state levels, and controlling for the
size of the groups, Nick Stephanopoulos finds that African Americans,
women, and the poor stand out as groups whose policy preferences are
significantly less likely to be adopted (as compared to the preferences
of whites, men, and the wealthy, respectively), but no evidence that
Hispanics and religious groups are under-powered in this way. 553
More generally, Kenji Yoshino has argued that judicial identification
of powerless groups has been characterized by a “paradox of power,”
such that only groups that have managed to build a significant measure of political power have succeeded in securing the “powerless” designation, leaving truly powerless groups out in the cold. 554 Other theorists have pointed to any number of different groups that seem
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
551 See id. at 734–37; Daniel R. Ortiz, Pursuing a Perfect Politics: The Allure and Failure of
Process Theory, 77 Va. L. Rev. 721 (1991).
552 See Stephanopoulos, supra note 523, at 1537–42. Of the factors just listed, only the presence or absence of antidiscrimination legislation speaks directly to the power of groups to secure
favorable policy outcomes. Yet courts only sometimes view the existence of antidiscrimination
laws as evidence of sufficient political power; in other cases these laws are viewed as evidence of
an ongoing threat of discrimination against which the group lacks adequate power to protect itself. See Schacter, supra note 543, at 1369, 1377, 1381–83; see also Bertrall L. Ross II & Su Li,
Measuring Political Power: Suspect Class Determinations and the Poor, 104 Calif. L. Rev. 323
(2016) (arguing that the enactment of laws benefitting a group does not necessarily speak to the
political power of that group, and illustrating that point with empirical evidence that legislators’
support for antipoverty legislation does not reflect the political influence of the poor).
553 Stephanopoulos, supra note 523, at 1600–01.
554 See Kenji Yoshino, The Paradox of Political Power: Same-Sex Marriage and the Supreme
Court, 2012 Utah L. Rev. 527, 539.
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plausibly powerless, including unorganized workers, 555 middle-income
Americans, 556 and Muslims and immigrants who lack the power to defend themselves against the predations of security-obsessed majorities
in the post-9/11 world. 557
Whether courts will be interested in searching for new groups lacking in political power or extending rights on that basis remains to be
seen, but there is reason for skepticism. The high water mark of political process theory was the Warren Court’s campaign to dismantle the
Jim Crow systems of segregation and criminal justice, a major contribution to making policy less hostile to the interests and welfare of disenfranchised African Americans in the South. In recent decades, however, rights jurisprudence has become largely disconnected from the
project of reallocating political power to vulnerable groups or compensating for its absence. While the Court continues to point to political
powerlessness as a reason for heightened equal protection scrutiny, the
animating theory of equality has shifted from an antisubordination focus on protecting disadvantaged groups to an anticlassification prohibition on the use of particular group characteristics in allocating benefits and burdens. 558 Thus, rather than protecting racial minorities
against laws with disadvantageous effects, equal protection has been
recast as a prohibition against all race-conscious policies, even those
designed to prevent racially disparate impacts or to reallocate resources and opportunities to disadvantaged groups. 559 Whatever
might be said in favor of an anticlassification approach to equality, it is
a non sequitur to political process theory or to an overaraching concern with the distribution of power among social groups.
The Court could always switch jurisprudential directions, but the
potential for judicially enforced rights to substitute for political power
is inevitably going to be limited. In theory, courts taking a political
process approach might seek to replicate the policy outcomes that
would have prevailed in a “perfected” democratic system in which
power was fairly distributed among all groups and interests. Yet in
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
555 Cf. Benjamin I. Sachs, The Unbundled Union: Politics Without Collective Bargaining, 123
Yale L.J. 148 (2013).
556 Sitaraman, supra note 33, at 58–59; see also Andrias, supra note 33, at 421.
557 See David Cole, Enemy Aliens, 54 Stan. L. Rev. 953, 981 (2002) (arguing that aliens shut
out from political processes like voting should be considered a “discrete and insular minority”).
558 On the distinction, see Owen M. Fiss, Groups and the Equal Protection Clause, 5 Phil. &
Pub. Aff. 107, 129–30, 157–64 (1976). On the Court’s movement, see, for example, Jack M. Balkin
& Reva B. Siegel, Remembering How to Do Equality, in The Constitution in 2020 93 (Jack M.
Balkin & Reva B. Siegel eds., 2009); Reva B. Siegel, Equality Talk: Antisubordination and
Anticlassification Values in Constitutional Struggles Over Brown, 117 Harv. L. Rev. 1470, 1537
(2004).
559 See David A. Strauss, Discriminatory Intent and the Taming of Brown, 56 U. Chi. L. Rev.
935 (1989) (arguing that the discriminatory intent standard is inadequate to evaluate most kinds
of discrimination).
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practice, to the extent constitutional rights have been oriented toward
sociopolitical subordination at all, the focus has been only on a small
number of the most historically and sociologically salient groups. And
courts have done little more for these groups than eliminate blatantly
discriminatory laws and policies, shunning the possibility of casting
rights as positive, redistributive claims to social and economic
goods. 560 To the extent political process theory mandates a more ambitious project of redistributing governance outcomes to reflect a fair distribution of political power among groups and interests in society, the
political process in practice will probably cause it to fall far short of
that goal.
D. Resources
The preceding discussion of electoral power suggested some of the
limits of voting as a mechanism for redistributing power. In particular, mounting evidence suggests that the preferences of electoral majorities have little weight in policymaking and are usually trumped by the
policy preferences of business organizations and wealthy elites. Indeed, recent studies conclude that “the views of constituents in the bottom third of the income distribution receive[] no weight at all in the
voting decisions of their senators,” 561 that Presidents also answer to
the “narrow political and economic interests” of elites, 562 and, more
generally, that “when preferences between the well-off and the poor
diverge, government policy bears absolutely no relationship to the degree of support or opposition among the poor.” 563 Re-asking Dahl’s
question of “who governs?,” or “who really rules?,” an influential study
by Martin Gilens and Benjamin Page finds the answer is not majorities or the median voter but “powerful business organizations and a
small number of affluent Americans,” leading them to conclude that
“the majority does not rule — at least not in the causal sense of actually determining policy outcomes.” 564
How can a small minority of wealthy elites overpower the electoral
majorities who are supposed to prevail in American democracy?
When Dahl initially framed the “who governs?” question, he did so in
reference to “a political system where nearly every adult may vote but
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
560 U.S. courts have resisted scholarly pushes in this direction. See, e.g., Cass R. Sunstein, The
Second Bill of Rights 149–71 (2004); Frank I. Michelman, Foreword: On Protecting the Poor
Through the Fourteenth Amendment, 83 Harv. L. Rev. 7 (1969). Courts in other constitutional
systems have been more receptive. See Mark Tushnet, Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law (2008).
561 Larry M. Bartels, Unequal Democracy: The Political Economy of the New Gilded Age 254
(2008).
562 James N. Druckman & Lawrence R. Jacobs, Who Governs?: Presidents, Public Opinion,
and Manipulation xiii (2015).
563 Gilens, supra note 34, at 81.
564 Gilens & Page, supra note 524, at 576–77.
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where knowledge, wealth, social position, access to officials, and other
resources are unequally distributed.” 565 As this description suggests,
votes are but one type of political resource, and not necessarily the
most valuable. 566
In particular, another valuable political resource that economic
elites have a lot of is wealth. Money can be converted into policymaking influence through any number of different channels: donating to
campaigns or making independent expenditures on behalf of candidates or parties; lobbying government decisionmakers; participating in
administrative rulemaking; offering “revolving door” employment opportunities for officials; funding and orchestrating social movements
and “grassroots” organizations; mounting sustained campaigns to shift
and shape public opinion on issues like gun control or global warming;
or, in the case of businesses or very wealthy individuals, threatening to
leave the jurisdiction, taking their talents and tax revenues elsewhere.
Through these and other pathways of political influence, economic
elites, notwithstanding their deficit of votes, may very well exercise
dramatically disproportionate power in the American political system.
The problem, from this perspective, is not just that concentrated
wealth becomes concentrated power, but also that the two are linked
together in a mutually reinforcing dynamic. The political power purchased through wealth may allow economic elites to enact selfinterested policies that increase their wealth, and hence their political
power. This dynamic creates a feedback loop of increasing inequality
in both domains: the rich get richer; the powerful get more powerful.
Progressive Era and New Deal reformers took this view of the political
economy of concentrated wealth, campaigning against the rise of a
“moneyed aristocracy,” “economic royalists,” and the oligarchic concentration and combination of economic and political power in the hands
of a despotic class. 567 Similar diagnoses are increasingly prevalent in
this “New Gilded Age” of extreme inequality. 568
Those concerned about power imbalances stemming from unequal
resources have considered two kinds of regulatory strategies. One is to
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
565
566
Dahl, supra note 39, at 1.
Dahl elsewhere elaborates:
Varying with time and place, an enormous number of aspects of human society can be converted into political resources: physical force, weapons, money, wealth, goods and services, productive resources, income, status, honor, respect, affection, charisma, prestige, information,
knowledge, education, communication, communications media, organizations, position, legal
standing, control over doctrine and beliefs, votes, and many others.
Robert A. Dahl, On Democracy 177 (1998).
567 See Joseph Fishkin & William E. Forbath, Wealth, Commonwealth, & the Constitution of
Opportunity, NOMOS (forthcoming) (manuscript at 36–39).
568 See Bartels, supra note 561, at 28; see also Elizabeth Warren, A Fighting Chance 2 (2014)
(“Today the [political] game is rigged — rigged to work for those who have money and power.”).
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attempt to block the conversion of resources into power. In the law-ofdemocracy domain, campaign finance reform is one obvious possibility
for preventing economic elites from purchasing greater political power,
though perhaps not a very promising one given both the difficulty of
enacting effective regulation and the constitutional limitations imposed
by the Supreme Court. 569 Lobbying reform is another increasingly
common proposal, though one beset by similar difficulties on both
fronts. 570 One way around the difficulties of attempting to limit the
influence of wealthy elites through spending or lobbying is to increase
the influence of “countervailing voices” through these channels — leveling up rather than leveling down. 571 That could mean public financing of elections or campaign finance vouchers that would be distributed equally among citizens, 572 or even public subsidies that would
enable currently unrepresented groups to gain access to lobbyists. 573
Whatever promise these and other proposals might hold, however,
they leave many other pathways of resource-advantaged political influence unaddressed. The problem, in a nutshell, is that “the political
power that comes from wealth is portable across political processes.” 574
Indeed, it is “[t]he sheer versatility of material power [that] makes it so
significant politically.” 575 As a result, regulatory efforts to limit the
advantages of money in politics confront a “hydraulic problem”: restricting the flow through one channel just redirects the dollars into
other channels. 576
The difficulty of preventing inequalities of political resources from
being converted into inequalities of power suggests a second and more
ambitious strategy: equalizing the resources themselves. 577 If the political process cannot be quarantined from resource inequality, the only
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
569 See Sachs, supra supra note 555, at 163–64 (2013); Michael S. Kang, The End of Campaign
Finance Law, 98 Va. L. Rev. 1, 53–56 (2012).
570 See Sachs, supra note 555, at 164–65; Kang, supra note 569, at 59–63; Richard L. Hasen,
Lobbying, Rent-Seeking, and the Constitution, 64 Stan. L. Rev. 191, 200–16 (2012).
571 See Bruce E. Cain, More or Less: Searching for Regulatory Balance, in Race, Reform, and
Regulation of the Electoral Process 263, 277 (Guy-Uriel E. Charles et al. eds., 2011).
572 For one proposal along these lines, see Bruce Ackerman & Ian Ayres, Voting with Dollars:
A New Paradigm for Campaign Finance (2002).
573 See Heather Gerken, Keynote Address, Lobbying as the New Campaign Finance, 27 Ga. St.
U. L. Rev. 1155, 1165–68 (2011).
574 Sachs, supra note 555, at 166.
575 Id. at 166 (first alteration in original) (quoting Jeffrey A. Winters, Oligarchy 18 (2011)).
576 See Samuel Issacharoff & Pamela S. Karlan, The Hydraulics of Campaign Finance Reform,
77 Tex. L. Rev. 1705, 1708 (1999); see also Sitaraman, supra note 33, at 44–46 (generalizing the
hydraulic problem from campaign finance reform to any regulatory effort to limit the influence of
money in politics).
577 See Sitaraman, supra note 33, at 6 (distinguishing between strategies of “safeguarding the
political process” by “seek[ing] to create a firewall that will protect politics from economic influence,” and “countering economic inequality” by “seek[ing] to prevent economic inequality in the
first place — prior to its having political influence” (emphasis omitted)).
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solution may be to address the inequality itself. Deconcentrating political power may require deconcentrating economic power through the
redistribution of wealth and opportunity.
Of course, such reforms are easier called for than accomplished. If
political dominance by economic elites is the problem, it may be hard
to hope for a political solution. 578 Yet the nonwealthy and other disenfranchised groups might be able to draw upon a valuable political resource of their own: mobilization, in the form of mass organization,
collective action, or social movements. Foremost among these is mobilization, in the form of mass organization, collective action, or social
movements. At one extreme, mobilized groups that have been excluded from formal political channels can exercise power in the streets,
whether through peaceful protests or violence. Groups of citizens can
withdraw social and economic cooperation, by sitting in, refusing to
pay taxes, dodging the draft, or going on strike. As the history of politically influential protest movements in the United States illustrates,
from the Boston Tea Party and Shay’s Rebellion to the civil rights
movements, pickets and pitchforks can substitute for ballots as a
source of political power. 579 But mobilization can also create influence
through the standard processes of democratic politics. Successful social movements can shape political institutions by linking up with political parties and enlisting voters and politicians in support of their
agendas.580 Well-organized political groups can effectively persuade
and turn out voters, lobby government officials, and influence public
opinion. 581 Whether operating inside or outside of ordinary political
channels, mobilization can enable politically disadvantaged groups and
interests to compete with the wealthy and powerful.
For much of the twentieth century, for instance, labor unions were
successful in mobilizing lower- and middle-class workers and enabling
them to exercise effective political voice across a range of issues. 582 In
recent decades, however, as unionization rates have dropped, this voice
has concomitantly weakened. 583 The decline of labor as a political
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578 Cf. Eric A. Posner & Adrian Vermeule, Inside or Outside the System?, 80 U. Chi. L. Rev.
1743, 1745 (2013) (identifying as a fallacy the hope that legal and political institutions that have
been diagnosed as failing to serve the public interest will be the source of implementing a cure for
the pathologies that led to that diagnosis).
579 See Kay Lehman Schlozman et al., Inequalities of Political Voice, in Inequality and American Democracy 19, 63–68 (Lawrence R. Jacobs & Theda Skocpol eds., 2005). That said, successful social movements often require the leadership and support of wealthy and educated elites, id.
at 66–67, and some are predominantly middle-class or “Rich People’s Movements,” Sitaraman,
supra note 33, at 34.
580 See generally Social Movements and American Political Institutions (Anne N. Costain &
Andrew S. McFarland eds., 1998).
581 See supra notes 569–571 and accompanying text (discussion of interest groups).
582 See Sachs, supra note 555, at 168–71.
583 Id. at 154.
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force has led to the rollback of many New Deal and Great Society redistributive and regulatory programs and appears to have significantly
contributed to the rise of economic inequality.584 Recognizing the importance of unions as a vehicle for mobilizing and empowering the
nonwealthy and reducing political and economic inequality, commentators have suggested reforms designed to reinvigorate unions as political organizations. For example, Ben Sachs proposes “unbundling” the
political function of unions from the collective bargaining function in
the hope of reducing managerial opposition and expanding the membership of “political unions.” 585 Sachs also suggests a number of other
potential organizational vehicles for the nonwealthy that might further
the goal of “representational equality.” 586
Abstracting from the specific set of issues surrounding economic
and political inequality, it is important to recognize that every law and
policy that affects the distribution of wealth or the costs of mobilizing
collective action at least potentially serves to redistribute political
power. Social Security and other social welfare programs create beneficiary constituencies with the resources and organization to defend
these programs. 587 By fragmenting the financial services industry, the
Glass-Steagall Act also diminished the industry’s political power, paving the way for other kinds of regulatory measures. 588 Rules of corporate law relating to ownership structure increase the wealth and power
of different groups of stakeholders, creating path-dependent trajectories for the further development of corporate law. 589 Cap-and-trade
approaches to climate regulation, in contrast to carbon taxes and other
regulatory strategies, promise to empower commercial interests that
will be invested in maintaining and expanding the regulatory system. 590 Republican strategists pursue tort reform and restrictive labor
laws for the strategic purpose of decreasing the wealth of trial lawyers
and the efficacy of unions — and therefore the political prospects of
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584
585
586
See Jacob S. Hacker & Paul Pierson, Winner-Take-All Politics 127–51 (2010).
Sachs, supra note 555, at 155.
Id. at 203–06 (identifying government programs, public education, public hospitals, libraries, and public recreation centers as potential vehicles to support political organizing for the
nonwealthy).
587 See, e.g., Andrea Louise Campbell, How Policies Make Citizens: Senior Political Activism
and the American Welfare State 2–3 (2003) (arguing that Social Security has caused seniors to be
more able and motivated to participate politically, but that the same is not true of welfare programs for the poor); Paul Pierson, Dismantling the Welfare State? 39–50 (1994).
588 See Adam J. Levitin, The Politics of Financial Regulation and the Regulation of Financial
Politics: A Review Essay, 127 Harv. L. Rev. 1991, 2060–62 (2014).
589 See Lucian Arye Bebchuk & Mark J. Roe, A Theory of Path Dependence in Corporate
Ownership and Governance, 52 Stan. L. Rev. 127, 157–60 (1999).
590 See Eric M. Patashnik, Reforms at Risk: What Happens After Major Policy Changes Are
Enacted 179–80 (2008); Richard J. Lazarus, Super Wicked Problems and Climate Change: Restraining the Present to Liberate the Future, 94 Cornell L. Rev. 1153, 1210 (2009).
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the Democratic Party. 591 These examples only begin to illustrate what
is a pervasive phenomenon: in E. E. Schattschneider’s resonant summation, “New policies create a new politics.” 592
This includes the policies generated by constitutional law, which also help determine the allocation of political resources. The preceding
discussion considered constitutional rights as a substitute for political
power. 593 But rights can also be a source of political power. This is
straightforwardly the case for rights that directly protect avenues of
participation in democratic politics — starting with voting rights, but
also including the First Amendment protection of political speech. 594
But other rights that are not self-consciously designed for the purpose
of empowering groups to more effectively participate in the political
process may have that effect. Rights of freedom of association and
free exercise of religion may be essential in allowing some groups to
organize and mobilize. 595 Similar democracy-facilitating arguments
have been made in support of rights to education and welfare. 596 Antidiscrimination rights, as well, can protect groups against forms of social and economic disadvantage that impede their political efficacy. 597
The same is true of rights that contribute to social and economic empowerment, for example by protecting access to birth control and
abortion for women. 598 More generally, rights can serve as focal points
for political organizing: social movements in support of racial minorities, women, gays and lesbians, and other disadvantaged groups have
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591 See Daryl Levinson & Benjamin I. Sachs, Political Entrenchment and Public Law, 125
Yale L.J. 400, 432–41 (2015).
592 E. E. Schattschneider, Politics, Pressures and the Tariff 288 (1935).
593 See supra note 380 and accompanying text.
594 See Alexander Meiklejohn, Free Speech and Its Relation to Self-Government 25–27 (1948)
(describing the First Amendment as allowing people to voice any opinion they want in a policy
debate regardless of content and the American idea of universal suffrage).
595 See Adam S. Chilton & Mila Versteeg, Do Constitutional Rights Make a Difference?, 60
Am. J. Pol. Sci. 575, 577–80 (2016) (identifying a category of “organizational rights,” including associational and religious liberty rights, that facilitate collective action in the civil and political
spheres).
596 See San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1, 113–15 (1973) (Marshall, J.,
dissenting) (arguing for a constitutional right to equal funding for public education on the ground
that education is instrumental to political participation); Corey Brettschneider, Democratic Rights:
The Substance of Self-Government 14 (2007) (identifying and disagreeing with an argument that
welfare is “instrumental to democratic procedure”).
597 See Ely, supra note 31, at 135–79 (making the case that social “prejudice” against minorities
undermines their political power and should be viewed as analogous to disenfranchisement).
598 See Ruth Bader Ginsburg, Sex Equality and the Constitution: The State of the Art, 4
Women’s Rts. L. Rep. 143, 143 (1978) (“Not only the sex discrimination cases, but the cases on
contraception, abortion, and illegitimacy as well, present various faces of a single issue: . . . . [a]re
women to have the opportunity to participate in full partnership with men in the nation’s social,
political, and economic life?”).
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rallied around claims of rights. 599 In all of these ways, constitutional
rights can facilitate the redistribution of political resources and power.
But the more general moral is that constitutional law is not special
in this regard. The distribution of political power is the product not
just of the public law regimes explicitly concerned with the structure
of government and the political process but of all law and policy. And
the set of potential mechanisms for redistributing political power is
correspondingly expansive. If the goal is equalizing the political power
of disadvantaged groups and interests, the tax system, social welfare
policy, antidiscrimination statutes, antitrust enforcement, financial services regulation, and labor law may be every bit as relevant as the law
of democracy, and likely much more so than separation of powers. 600
This Part has attempted to show how a number of different and
disconnected areas of public law might be linked by a common concern with how political power is distributed, diffused, and balanced –
not at the level of government institutions but at the level of interests
and social groups. One could view this as a preliminary sketch of
what could be a constructive project in constitutional thought: transplanting the constitutional principle of deconcentrating power from the
structural to the democratic level and calling upon courts (and legislatures) to marshal the resources of administrative law, the law of democracy, constitutional rights jurisprudence, and any number of other
regulatory fields with an agenda of redistributing and equalizing political power among groups in society. At the very least, some or all of
these areas of law might be pushed toward a more explicit and sustained focus on the distribution and practical efficacy of democraticlevel power and on how that power is affected by a multiplicity of legal regimes.
At the same time, however, the discussion in this Part has emphasized some of the major challenges with pursuing any such project.
One is the lack of any well-developed and widely-shared theory of
what would count as a fair or equal distribution of power among
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599 See William N. Eskridge, Jr., Channeling: Identity-Based Social Movements and Public
Law, 150 U. Pa. L. Rev. 419, 423–25 (2001). However, the recognition of rights can also be politically disempowering. Judicial recognition of rights sometimes provokes political backlash against
the beneficiaries. See Klarman, supra note 26, at 385–421 (describing the increase in legal and
extralegal resistance to desegregation after the Supreme Court mandated racially integrated
schools); Michael J. Klarman, From the Closet to the Altar: Courts, Backlash, and the Struggle for
Same-Sex Marriage 89 – 118, 143 -55, 165–92 (2013); Robert Post & Reva Siegel, Roe Rage: Democratic Constitutionalism and Backlash, 42 Harv. C.R.-C.L. L. Rev. 373 (2007).
600 See generally Jacob S. Hacker et al., Inequality and Public Policy, in Inequality and American Democracy, supra note 579(surveying the evidence on the effects of a broad range of public
policies on social and economic inequality and, consequently, on political inequality).
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groups and interests. Another is the difficulty of assessing how much
power different groups and interests in fact possess — analogous to the
difficulty, described in Part I, of making such assessments at the institutional level. Following close behind is the dubious ability and legitimacy of courts to engage in these descriptive and normative assessments of the systemic distribution of power in the American political
system.
Attempting to work out what a feasible or desirable program of
reform might look like is beyond the scope of what is possible here.
The more modest ambition of this Part (and of the Foreword more
generally) has been to suggest that constitutional law and theory would
benefit from greater attention to these questions. Constitutional
thought might do well to redirect its focus from the power of government institutions to the power of groups in society — and correspondingly from structural constitutional law to a broader range of legal regimes that serve to redistribute democratic power.
Conclusion
“Who governs?” 601 That simple question cuts to the core of how
American democracy works and how the legal frameworks that constitute and regulate it, starting with constitutional law, should be designed and assessed. Unfortunately, the development of constitutional
law has proceeded with very little understanding of who governs, or
where power is located in the American political system.
As the foregoing discussion has attempted to demonstrate, a large
part of the problem is that constitutional law has been looking for
power in the wrong places. At one level, the misdirection has occurred
because assessing the power of government institutions and officials is
a much more difficult task than many courts and commentators seem
to recognize. Power over the state is entangled with the power of the
state. Power is often located elsewhere than the site of action and
camouflaged by inaction. Apparent constraints on power may actually
serve to augment it; and enhancements of power may turn out to have
the opposite effect when viewed in dynamic perspective. Formal, legal
grants of and limitations on power may have little to do with the de
facto ability or inability to influence policy outcomes. Each of these
observations ratchets up the difficulty of seat-of-the-pants assessments
of where power is actually located in government; taken together, they
cast considerable doubt on the veracity of many conventional understandings of who is wielding or accumulating power in government,
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601 See Dahl, supra note 24 and accompanying text (discussing the alignment of the policy
views of the Supreme Court and lawmaking majorities).
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and also on the ability of courts and armchair observers to make such
judgments.
More fundamentally, the right answer to the “who governs?” question cannot be Congress or the President. The ultimate governors in a
democracy are the voters, political parties, interest groups, and other
democratic actors who compete for control over government institutions and attempt to effectuate their policy interests. Focused on the
power of institutions, constitutional analysis seldom sees how that
power is passed through to the level of interests. Yet power at the level of constitutional structure is, in an important sense, merely superstructural.
Constitutional law’s normative goal(s) of checking, balancing,
equalizing, or diffusing power seem similarly misplaced. Preventing
one group from dominating or subjugating another is a self-evidently
attractive principle of political justice as applied to the abolition of
slavery or opposition to oligarchy, but the principle loses any obvious
force when it is applied to government institutions like Congress and
the President. The ideal of equalizing political power shines brightly
when monarchies and dictatorships are replaced by democracy, and at
least dimly when balanced pluralist competition among a variety of
factions or interests promotes power-sharing and prevents monopolization; but when it comes to equalizing the power of government institutions it is hard to see any spark. Madison’s recourse to pluralism and
countervailing power in Federalist 10 makes perfect sense, but his
translation of those ideas to government institutions in Federalist 51
remains difficult to parse. 602 The idea of balancing power as a mechanism for permitting groups with deeply divergent interests to live together peacefully holds clear promise in the context of mixed government, consociational democracy, and international relations among
What constitutional law hopes to accomplish by way of
states. 603
balancing the power of government institutions that have been hollowed of interest-based constituencies and hence rivalries is much
harder to say.
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602
603
See supra notes 27–28 and accompanying text.
The international version of the theory is that states or coalitions of states with equal power will achieve a self-interested equilibrium of peaceful coexistence, whereas an imbalance of
power will lead the stronger side to provoke war. See Eric A. Posner, Balance-of-Power Arguments and the Structural Constitution 3 (U. Chi. L. Sch., Inst. for L. & Econ., Working Paper No.
622, 2012). That idea may have influenced thinking about the U.S. constitutional design. See
Jack Goldsmith & Daryl Levinson, Law for States: International Law, Constitutional Law, Public
Law, 122 Harv. L. Rev. 1791, 1840 (2009) (noting that domestic separation of powers theory and
international balance of powers theory arose at approximately the same time and the similarities
between the two); Akhil Reed Amar, Of Sovereignty and Federalism, 96 Yale L.J. 1425, 1496–97 &
n.283 (1987) (discussing early conceptions of the balance of power between state and federal governments and a similar understanding of the American role in the European balance of power).
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This Foreword has thus suggested that the constitutional impetus
toward diffusing and balancing power might be better aimed at the
democratic-level political actors who actually possess and compete for
it. Public law has, in fact, sometimes been oriented in this direction, in
the domains of administrative process, the law of democracy, and constitutional rights jurisprudence on the Carolene Products model. These and other pockets of public law might be productively linked with
one another, and with the values of structural constitutionalism, by a
common concern with balancing and diffusing power – not at the level
of government institutions but at the level of political interests and social groups. The ambition of this Foreward has been to show how relocating power and the ideal of redistributing it in this way holds some
promise to illuminate who governs and how constitutional law does
and should decide.